Boston Globe, December 7, 2005

Private hospitals exempt on pill law

State accepts objections to morning-after drug

By Scott Helman, Globe Staff

The state Department of Public Health has determined that Catholic and other privately-run hospitals in Massachusetts can opt out of giving the morning-after pill to rape victims because of religious or moral objections, despite a new law that requires all hospitals who treat such victims to provide them with emergency contraception.

The decision, which is likely to result in a legal challenge, reignites an issue that has been fiercely debated on Beacon Hill: who should have access to emergency contraception and which hospitals, pharmacies, and medical centers should be required to provide it.

The ruling set off criticism from reproductive rights advocates and other backers of the new law, who believe rape victims should have wide access to what they say is a safe, effective means to prevent unwanted pregnancies. But it heartened conservatives and Catholic groups, who oppose the morning-after pill because they believe it amounts to abortion in some cases.

The ruling, which the department plans to outline to hospital CEOs in a letter this week, says the new law applies to all hospitals but does not nullify a statute passed years ago that says privately-run hospitals cannot be forced to provide abortions or contraception.

''We feel very clearly that the two laws don't cancel each other out and basically work in harmony with each other," Paul Cote Jr., commissioner of the Department of Public Health, said in an interview yesterday.

The new law, which was passed overwhelmingly by the Legislature this summer over the objections of Governor Mitt Romney, takes effect next week. Backers of the measure yesterday said the department's decision is evidence that Romney, who said during his 2002 campaign that he supported broader access to emergency contraception, is actually fighting to undermine it.

''We're very disappointed that the Romney administration is not honoring the intent of the Legislature, who voted overwhelmingly to protect the health of rape victims," said Melissa Kogut, executive director of NARAL Pro-Choice Massachusetts.

The emergency contraception pill, also called Plan B, is a high dose of hormones that women can take up to five days after sex to prevent pregnancy. Supporters say that the pill prevents pregnancies by halting ovulation, fertilization, or implantation of a fertilized egg in the uterine wall, but that it has no effect on a firmly implanted egg. The only connection to abortion, they say, is that it will reduce them by preventing unwanted pregnancies.

But opponents who believe that life begins at conception contend that the pill can cause a ''chemical abortion" by hampering implantation in the uterine wall.

The Department of Public Health decision is welcome news for Catholic hospitals who do not provide emergency contraception and feared that the new law would make them do so. (In 2004, NARAL surveyed the 71 hospitals in Massachusetts with emergency rooms and found that one in six did not offer emergency contraception to rape victims. Among the nine Catholic hospitals included in the survey, NARAL found that six did not offer it.)

Judy Mackey, a spokeswoman for Saint Vincent Hospital in Worcester, which does not offer the morning-after pill, said it would have been difficult for the hospital to navigate between state law and Catholic tenets.

''I'm glad they sorted it out and it's a clear path for us, because obviously being in the gray area is not good," Mackey said. The dilemma, she said, was ''how to be legally compliant and compliant with our religious objectives?"

Lawmakers, however, said the Legislature had something very different in mind: that rape victims could get emergency contraception at any hospital, Catholic or not.

''There is no mistaking the intention of the law," said Senator Susan C. Fargo, a Lincoln Democrat and cosponsor of the bill.

The question of whether the new law would trump the existing statute preventing any private hospital from being forced to provide an abortion or contraception was central to the debate earlier this year in the Legislature. State Representative John Rogers cited the existing law in an unsuccessful bid to exempt Catholic hospitals. Without that exemption, he said he believed those hospitals would have to give emergency contraception to rape victims under the bill.

Attorney General Thomas F. Reilly, the state's top law enforcement official and a Democratic candidate for governor next year, criticized the Department of Public Health decision yesterday.

''We believe the law is clear and that it applies to all hospitals," Reilly said in a statement. ''We expect all hospitals to follow the law."

Reilly's aides would not elaborate on whether the office would defend the ruling if it is challenged.

Romney's communications director, Eric Fehrnstrom, said the governor felt that the decision made sense because it ''respects the views of healthcare facilities that are guided by moral principles on this issue."

Fehrnstrom and Cote said the governor had not pressured the department to come up with its legal interpretation.

''The staff at DPH did their own objective and unbiased legal analysis," Fehrnstrom said in an email. ''They brought it to us, and we concur with it."

State Senator Pamela Resor, an Acton Democrat and lead sponsor of the new law, said lawmakers might file legislation that specifically repeals the prior statute.

''We'll pursue it any way we have to," she said.

Reproductive rights groups say it is unfair to limit hospital access for rape victims who are not able to choose which hospital they go to -- if they're taken there by ambulance, say, or because there's not another facility nearby.

''Rape victims shouldn't have to worry about the affiliation of a hospital when they go to an emergency room or are brought there by an ambulance to receive necessary care," said Angus McQuilken, public affairs director for the Planned Parenthood League of Massachusetts.

Administration officials dismissed those concerns, saying it is unlikely that a rape victim would face a hardship because some hospitals choose not to provide emergency contraception.

''I don't think that's a hypothetical that really holds water," Cote said.

Seven other states with emergency contraception laws require all hospitals to provide it to rape victims.

None of them exempt hospitals opposed to providing contraception or abortion services.

People on both sides of the issue in Massachusetts agreed on one thing: that this is hardly the last word.

''Generally this is a victory for religious freedom and for conscience rights," said C. J. Doyle, executive director of the Catholic Action League of Massachusetts.

''It's encouraging, but we're not out of the woods yet."

Scott Helman can be reached at shelman@globe.com.

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