Contraceptive Equity

Washington law requires health insurance plans that cover prescription drugs to provide equitable coverage for contraception.

What is required?  If a health insurance plan provides generally comprehensive coverage of prescription drugs and devices, it must provide coverage for Food and Drug Administration-approved prescription contraceptive drugs and devices, including prescription barrier methods and emergency contraception.

To which insurance plans does the law apply?  Health insurance plans issued or renewed on or after January 1, 2002 that provide generally comprehensive coverage of prescription drugs and devices.

Does the law provide additional protections for women?  Yes.  Insurers may not impose copayments, deductibles, waiting periods, limitations, or restrictions on prescription contraceptives that are not imposed on other covered prescription drugs and devices.

Does the law contain a refusal clause, allowing certain employers and/or insurers to refuse to provide or pay for contraceptive coverage?  No.  Although a separate regulation allows employers to refuse to provide insurance coverage for services they oppose for religious or moral reasons, the same regulation explicitly recognizes that an individual has a right to obtain a health plan that covers the full range of services regardless of an employer's religious or moral objection to a particular service.

In a recent opinion, former Washington Attorney General (now Governor) Christine Gregoire determined that, even if an employer refuses to purchase insurance coverage for contraception, an employee may not be denied contraceptive coverage and an insurer may not charge the employee an extra fee for such coverage.  Former Attorney General Gregoire further stated that nothing in the regulation requires insurers to provide services without appropriate payment or fee and that other mechanisms of recovering the cost of such coverage should be considered.  Wash. Op. Att'y Gen. No. 5 (Aug. 5, 2002).

Wash. Admin. Code § 248-43-822 (Adopted 2001).

Emergency Contraception

PHARMACY ACCESS TO EMERGENCY CONTRACEPTION (EC)

Washington explicity allows pharmacists to provide emergency contraception (EC) directly to women without a prescription.  A pharmacist may dispense EC to a woman under written guidelines or protocols established and approved by a practitioner authorized to prescribe drugs.

Wash. Admin. Code § 246-863-100; Wash. Rev. Code Ann. § 18.64.011 (Enacted 1963; Last Amended 1997).

EMERGENCY CONTRACEPTION (EC) FOR SEXUAL ASSAULT VICTIMS

Washington law ensures that sexual assault victims receive access to emergency contraception (EC) in hospital emergency rooms.  As part of the minimum standards for the examination and treatment of a sexual assault victim, a physician or other health care provider must provide a sexual assault victim with medically and factually accurate information about EC, offer her EC, and dispense EC to her upon request.

Wash. Rev. Code Ann. §§ 70.41.020, .350, .360 (Enacted 2002).

MEDICAID COVERAGE OF EMERGENCY CONTRACEPTION (EC)

Washington provides Medicaid coverage of emergency contraception without a prescription.

NARAL Pro-Choice America Survey of State Medicaid Offices

Freedom of Choice Act

Washington has created additional protections for reproductive rights by adding an affirmative right to choose into its state law.  In 1991, Washington voters narrowly passed this law via a ballot initiative, reaffirming the holdings of Roe v. Wade in the state.  The initiative was so close that the final results had to wait on the full count of absentee ballots.  The ballot initiative also reaffirmed a fundamental right to choose or refuse birth control.  This law ensures women's access to pre-viability abortions and would remain in effect even if Roe v. Wade were overturned.  Absentee Ballots Put Washington Abortion Rights Initiative Ahead, Assoc. Press, Nov. 14, 1991.

"The sovereign people hereby declare that every individual possesses a fundamental right of privacy with respect to personal reproductive decisions.  Accordingly, it is the public policy of the state of Washington that:  (1) Every individual has the fundamental right to choose or refuse birth control; (2) Every woman has the fundamental right to choose or refuse to have an abortion . . . ; (3) . . . the state shall not deny or interfere with a woman's fundamental right to choose or refuse to have an abortion; and (4) The state shall not discriminate against the exercise of these rights in the regulation or provision of benefits, facilities, services, or information."  Wash. Rev. Code Ann. § 9.02.100 (Enacted by Initiative 1991).  Additionally, "[t]he state may not deny or interfere with a woman's right to choose to have an abortion prior to viability of the fetus, or to protect her life or health."  Wash. Rev. Code Ann. § 9.02.110 (Enacted by Initiative 1991).

Guaranteed Access to Prescriptions

Washington law guarantees that women's birth control prescriptions will be filled.  Upon receipt of a valid and lawful prescription for an FDA approved drug or device, a pharmacist must dispense the drug or device or a suitable alternative without delay.  If the pharmacy does not have the drug or device or a suitable alternative in stock, the pharmacy must obtain the drug or device in a manner consistent with customary pharmacy practice.  In the alternative, a patient may choose to have the prescription transferred to a different pharmacy or have the prescription returned to her.

Nothing under Washington law interferes with a pharmacist screening for potential drug therapy problems, including inadequacies in the instructions, contraindications, drug interactions, or potentially fraudulent prescriptions.

Wash. Admin. Code 246-863-095; Wash. Admin. Code 246-869-010.

A group of pharmacists challenged the constitutionality of the law and in November 2007 a federal district court granted their motion for a preliminary injunction.  Storman's Inc. v. Selecky, No. 07-CV-05374-ORD (W.D. Wash. Nov. 8, 2007) (order granting preliminary injunction), appeal docketed, Nos. 07-36039, 07-36040 (9th Cir. Dec. 13, 2007).  In May 2008, the U.S. Court of Appeals for the Ninth Circuit denied the appellants' motion to stay the district court's injunction pending appeal, however a motion to expedite oral argument in the case was granted. Storman's Inc. v. Selecky, Nos. 07-36039, 07-36040 (9th Cir. May 1, 2008).  In July 2009, the Ninth Circuit Court of Appeals lifted the injunction, noting that pharmacists were required to dispense the emergency contraceptive Plan B, even if they personally objected to the medication based on religious reasons, restoring women's access to birth control in the state.  While the injunction was lifted and the requirement for pharmacies to stock and dispense Plan B took effect immediately, the case was remanded back to the district court for further consideration.  Storman's Inc. v. Selecky, No. 07-36039 (9th Cir. Jul. 8, 2009).

Low-Income Women's Access to Abortion

Washington allows women eligible for state medical assistance for maternity care benefits to obtain public funds for abortion.  Wash. Rev. Code Ann. § 9.02.160 (Enacted 1992); Health & Recovery Servs. Admin., Physician-Related Servs. Billing Instructions, Reproductive Health Servs. §§ H-3 (July 2006) at http://fortress.wa.gov/dshs/maa/download/BillingInstructions/Physician-Related%20Services%202006/Physician-Related_Services_BI.pdf.

Low-Income Women's Access to Family Planning

Washington provides increased access to reproductive health care services through a Section 1115 family planning waiver.  The waiver allows the state to cover family planning services for all men and women of childbearing age with incomes at or below 200% of the federal poverty level, who are not otherwise eligible for state and federal health care programs.  

Beneficiaries of family planning coverage available through the waiver are not required to pay premiums or co-payments for covered services.  Covered services include: medically necessary services and supplies related to birth control, pregnancy prevention and preventive services (includes abstinence counseling, natural family planning, birth control pills, the contraceptive ring and patch, male and female condoms, contraceptive injections, diaphragms, cervical caps and the contraceptive sponge, emergency contraception, spermicides, IUDs, and male and female sterilizations); annual gynecological exam.  

The waiver will expire on June 30, 2009.  

Wash. Family Planning Demonstration Fact Sheet, Ctrs. for Medicare and Medicaid Servs., July 13, 2006 at http://www.cms.hhs.gov/MedicaidStWaivProgDemoPGI/MWDL/itemdetail.asp?filterType=none&filterByDID=-99&sortByDID=2&sortOrder=ascending&itemID=CMS047871&intNumPerPage=2000 (last visited Dec. 5, 2008); NARAL Pro-Choice America Survey of State Medicaid Offices

Protection Against Clinic Violence

It is unlawful for a person willfully or recklessly to interfere with access to or from a health care facility or willfully or recklessly to disrupt the normal function of such a facility by:  (1) physical obstruction; (2) noise that unreasonably disturbs the peace within the facility; (3) trespass; (4) repeated telephoning or knowingly permitting the use of any telephone under his or her control for such purpose; or (5) threats to inflict injury upon the owners, agents, patients, employees, or property of the facility, or knowingly permitting the use of any telephone under his or her control for such purpose.  A person convicted is guilty of a misdemeanor and will be fined at least $250 and jailed for at least 24 consecutive hours for a first offense; fined at least $500 and jailed for at least seven consecutive days for a second offense; and fined at least $1000 and jailed for at least 30 consecutive days for a subsequent offense.  A person or facility aggrieved may bring an action for damages, injunctive relief, costs, and attorneys' fees.  Wash. Rev. Code Ann. §§ 9A.50.005 to .070, .900 to .902 (Enacted 1993).

It is unlawful for an insurer to take an underwriting action on a policy of property insurance because an insured has made one or more insurance claims for any loss that occurred during the preceding 60 months that is the result of arson of malicious mischief or arson. Such prohibition includes health care facilities and providers. If an insured sustains a loss that is the result of arson or malicious mischief, the insured must file a report with the police or other law enforcement authority within thirty days of discovery of the incident, and a law enforcement authority must determine that a crime has occurred. The report must contain sufficient information to provide an insurer with reasonable notice that the loss was the result of arson or malicious mischief.  Chapter 145, 2006 Laws (Enacted 2006).