by Melanie Levy
Women’s Rights Law Reporter, Westlaw 2024. Thomson Reuters. Spring/Summer 2024
Abstract
Women’s health-related human rights are contested. Beyond the recent pushbacks on abortion rights, more subtle developments are discernible. This paper dissects one case study illustrating how professional self-regulation in pharmaceutical law can undermine equal access to emergency contraception (EC). In Switzerland, around 100,000 “morning after” pills are sold through pharmacies per year. Empirical evidence demonstrates how traumatic or shameful the experience can be for women. Because if regulation was liberalized in 2002 and EC has since been available without a doctor’s prescription, access remains subject to strict professional gatekeeping. Women must undergo a compulsory interview with a pharmacist in a pharmacy backroom. They must indicate their contact details, answer an intrusive questionnaire archived for twenty years, receive information about sexually transmitted diseases, and bear the costs. Prices for EC vary and peak in the evening and on weekends. The exceptionalism of access to EC, despite formal legal liberalization, highlights gender bias and perpetuates shame and stigma surrounding women’s sexually active behavior. Switzerland’s normative position on access to contraception is based on individual responsibility and formal equality. Every woman is responsible for avoiding unwanted pregnancy, and access to EC is guaranteed since it is available in all pharmacies. In reality, access obstacles created by EC dispensing mechanisms result in intersectional inequalities, depending on women’s age, socio-economic background, and migration status. This paper critically deconstructs the intricate intertwining of a liberal focus on individual responsibility and the disciplining power mechanisms of professional gatekeepers affecting female bodies and choices. Going beyond the personal and the political, it demonstrates how backsliding on sexual and reproductive rights can happen through the backdoor of professional self-regulation. Finally, this paper focuses on a substantive concept of equality for realizing women’s health-related human rights.
The following are the section headings of this 44-page paper:
-Introduction
-Evolution of access to emergency contraception in Switzerland
-Regulatory changes over time
-Discourse of fear about sexual promiscuity and sexual risk behavior
-Emergency or replacement for regular contraception?
-Pharmacists as gatekeepers: elements of power over female bodies and choices
-Providing an essential service
-Procedural steps as access obstacles
-Minors: the issue of age
-Unequal financial access: absence of insurance coverage and market pricing
-Empirical evidence depicting shame and intrusive behavior
-Beyond the personal and the political: professional gatekeeping as an equality issue
-Public/private divide reframed
-Control and dependency
-Misuse of patient safety and informed consent
-Contradiction with the liberal paradigm of individual responsibility
-Conclusion