My home and surgical practice are in Phoenix, Arizona. One hundred eighty miles to the west of Phoenix, a woman can walk into a California pharmacy and ask the pharmacist to prescribe her hormonal contraceptives, bypassing the doctor’s office and the $100+ fee for an office visit (and possibly an afternoon off from work). Drive 248 miles due east and a woman can get a prescription for hormonal contraceptives from a pharmacist in New Mexico. Three hundred miles to the north, and 373 miles to the northeast, pharmacists can prescribe hormonal contraceptives to women in Utah and Colorado respectively. And if a woman drives 180 miles due south, she can walk into a pharmacy in Nogales, Sonora, Mexico and purchase hormonal contraceptives without any prescription. After many previously unsuccessful attempts, Arizona legislators finally succeeded last week in ending Arizona’s role as the conspicuous southwestern U.S. outlier that restricts women’s pharmaceutical freedom–though they could have done better.
Of the 15 states that, at the time of this writing, allow women to obtain hormonal contraceptives without having to get a doctor’s prescription, the great majority grant prescribing authority directly to pharmacists. Arizona lawmakers chose a different approach. They voted to permit state and county public health officials, if they hold state health care practitioner licenses, to issue blanket “standing orders” to Arizona pharmacists, permitting them to dispense contraceptives to women who request them. The standing order effectively places the state health official in the role of the prescribing health care provider for any woman who walks into a pharmacy seeking hormonal contraception. This is the same approach that Arizona and many other states have used to make the opioid overdose antidote naloxone which, absurdly, still requires a prescription, more available to people who need it.
I have argued that standing orders can be an effective way to bring interim relief to people blocked from exercising their right to self‐medicate. But the operative word here is “interim.” Standing orders have a lot in common with executive orders. They are issued by an executive branch official—in this case a public health official who holds a state health care practitioner’s license—and are usually time‐limited. Furthermore, standing orders remain in effect as long as the public health official wants them to, and only if the next public health official is a licensed health care practitioner and decides to renew them. (Even worse, public health officials are not always licensed health care practitioners.) Since most public health officials answer to the chief executive, the security of standing orders is at the mercy of administration policy.
If Arizona lawmakers wanted definitive and lasting reform, they would have passed legislation permanently empowering pharmacists to prescribe hormonal contraceptives, regardless of any possible future changes in administration policy. Instead, lawmakers gave a respectful nod toward women’s reproductive rights but, at the end of the day, made only a modest change to the status quo. The new law is certainly a step in the right direction, but lawmakers could have gone further.
Since the beginning of this century the American College of Obstetrics and Gynecology has urged the Food and Drug Administration (or lawmakers) to make hormonal contraceptives over the counter. ACOG reiterated its position in 2019, extending it to include adolescent females:
Several studies have demonstrated that women are capable of using self‐screening tools to determine their eligibility for hormonal contraceptive use. Age should not be a barrier for access to hormonal contraception, and ACOG supports over‐the‐counter access for adolescents.
Despite the recommendations of ACOG, the new Arizona standing order law only pertains to women over 18. This means younger women still must see a doctor to get a prescription, likely involving their parents in the process—not an effective way to cut down on unwanted teen pregnancies.
The American Academy of Family Practice has long concurred with ACOG, urging the FDA to make hormonal contraceptives over the counter:
While oral contraceptive pills are widely considered to be safe and effective medications, they continue to require a prescription for use, further restricting access. The AAFP recognizes that though contraindications to these medications do exist, women have been shown to correctly self‐identify contraindications to use when using a standardized check‐list. Over 100 countries round the world currently provide oral contraceptive pills over the counter without a prescription.
Ironically, the emergency contraceptive Plan B, also called “the morning after pill,” has been available over the counter for women of all ages since 2014. Yet “Plan A,” hormonal contraception, still requires a prescription. As Michael F. Cannon and I explain in our white paper Drug Reformation, when the government has the power to require prescriptions for pharmaceuticals it is impossible to keep politics from tainting the process.
I have written of the need to make hormonal contraceptives over the counter. I have also encouraged state lawmakers to use their authority to determine the scope of practice of state‐licensed health care practitioners and permit pharmacists to prescribe hormonal contraceptives. Such an intermediate step does not render women the freedom to which they are entitled, but at least it saves them the inconvenience and cost of going to a doctor’s office to get a permission slip from another autonomous adult to exercise their reproductive rights.
Arizona lawmakers passed bold reforms this legislative session. They enacted landmark universal telehealth reform; legalized syringe services programs; passed major tax reform including a 2.5% flat income tax; and expanded Empowerment Savings Accounts (ESAs) for K‑12 students. Their impressive penchant for courageous reform makes it especially disappointing—and out of character—to see them so apprehensive and tentative when it comes to pharmaceutical freedom and women’s reproductive rights.
