Prescription Restriction: Why Birth Control Must Be Over-the-Counter in the United States

This Note argues that it is harmful and unnecessary to require women to obtain prescriptions for access to hormonal birth control. Requiring a prescription is necessarily a barrier to access which hurts women and hamstrings the ability to dictate their own reproductive plans. It is also an irrational regulation in light of the relative safety of hormonal birth control pills, particularly progestin-only formulations, compared to other drugs readily available on the shelves.Leading medical organizations, including the American College of Obstetrics and Gynecologists, advocate for over-the-counter access to hormonal birth control. While acknowledging that not every woman will have positive outcomes taking hormonal birth control pills, this Note argues that women are capable of taking hormonal birth control as directed and are able to self-identify if they themselves are at risk for complications.Following a long line of cases that establish reproduction as a fundamental right in the United States, it follows that requiring a prescription for access can and should be analyzed under the Fifth and Fourteenth Amendment Due Process clauses, particularly under the Undue Burden standard. Certain prerequisites, such as pelvic exams, once thought to be necessary to safely prescribe hormonal birth control, are now widely considered unnecessary in determining whether a particular woman can safely take birth control pills. This Note goes further and argues that such prerequisites are an unconstitutional method of holding vital medication hostage from women who desire to control their reproductive health.