Objection or Obstacle: Applying Amartya Sen’s Capability Approach to the Conscientious Refusal of Emergency Contraception

Abstract

The conscientious refusal to dispense emergency contraception (EC) is legally protected in fourteen states. While the ethical dimensions of these objections have been explored within moral and feminist philosophy, conscientious refusal to the over-the-counter sale of EC has not been significantly studied through an egalitarian lens, especially with attention to the existing reproductive healthcare landscape in which these refusals occur. This article argues, through Amartya Sen’s capability approach, that conscientious refusal to EC creates a burdensome inequality for people wishing to prevent pregnancy that manifests within a background of historical injustices, elevating its importance in our weighing of capabilities.

1. Introduction

Since receiving FDA approval in 2006, emergency contraception (EC) methods¹ sold in the United States have been objected to on religious and moral grounds by medical providers. Recently, the right to object to providing EC has extended to pharmacists and pharmacy clerks as more states permit conscientious refusal in healthcare venues beyond clinical settings (Kelleher 2010). Conscientious refusal in this article refers to religious and moral objections among agents to participating in acts that prevent pregnancy. As of 2012, 28 percent of states legally protect conscientious refusal in pharmaceutical settings. In contrast to countries where EC is provided on a prescription-only basis, EC is available over the counter in the United States for individuals over seventeen. Because of this age restriction, transactions must be partly mediated by an employee, which provides the opportunity to decline to proceed with the sale. For those under seventeen, a prescription is needed to obtain EC (Devine 2012). In both contexts, state policies that permit conscientious refusal respect the personal convictions of pharmacists and store cashiers yet impact the ability to obtain a medication with lifelong implications for others.

While conscientious refusal has been explored in a number of legal and ethical contexts, the issue has not been significantly assessed through an egalitarian lens. This gap appears remiss due to the pervasive political controversies surrounding reproductive health in the United States, where at least minimal commitments to liberty and equality exist. Furthermore, longstanding histories of political disenfranchisement, especially among women of marginalized racial and ethnic backgrounds, are inextricably entangled with the contemporary reality of inequitable healthcare access. It is thus worthwhile to interrogate how a commitment to egalitarianism might shed light on how to weigh bodily and religious freedoms at a time when reproductive healthcare policies lie at the top of legislative agendas. In this article, I claim that the conscientious refusal to dispense emergency contraception occurs within a background of existing reproductive inequalities that are exacerbated by these policies and requires further consideration in the current debate. This article will utilize Amartya Sen’s capability approach as a framework, with special attention to how this theory can help guide policymaking on the issue of conscientious refusal. I argue that conscientious refusal unjustly complicates the free and equal pursuit of one aspect of reproductive autonomy, a fundamental capability.

a. Equality’s value

Before understanding why we ought to promote equality with respect to reproductive autonomy, we must first grasp why a commitment to equality is desirable and appropriate in the first place. While there are numerous reasons outlined in the literature among political philosophers for equality’s value, one of the central reasons for why we ought to promote equality is that equality is linked to another important political aim: justice. Most famously, John Rawls (2009) articulates that equality promotes justice through the promotion of fair practices, recognition of every human’s personhood, and passing of policies that do not unfairly privilege one group over another (130-31). These considerations help to cultivate political justice in a democratic society by preventing the domination and oppression of some individuals or groups by others (Moss 2014, 23). Though these links might seem intuitive, it is important to note what grounds a commitment to equality, and, if we aim to promote justice with respect to reproductive healthcare, we must acknowledge how equality conceptually and practically aims to bring about these conditions.

Amartya Sen (1992), one of the most prominent voices in debates surrounding equality, points out how a commitment to equality is both frequent in the literature as well as conceptually important for our ethical reasoning. He anecdotally points out that the most ubiquitous and widely defended moral theories almost always involve equality. He asserts that equality is such a central aspect of ethics arguments because assertions must be viewed as credible from a wide perspective of other agents, “potentially all others.” Inversely, theories and approaches to argumentation that are not grounded in equal consideration for all in some fashion can be seen as “arbitrarily discriminating” (17). After all, ethical claims regarding how we design and arrange our social structures implicate all of those who potentially make them up. And, according to Sen, we need not adopt a Kantian deontology in our making of universal fairness claims; rather, we can merely understand that calls for justice must in some way involve the equal consideration of moral agents, leaving other important meta-ethical questions aside for the time being (18).

b. The capability approach to equality

Sen’s theory of equality, in particular, concerns itself with tackling complex questions regarding the boundaries of individual liberties and widespread freedoms and how a democratic society should ensure the equal distribution of these conditions. Unlike other egalitarian theories that argue for the equalizing of people’s starting points (such as resources) or ending points (such as welfare),² Sen's capability approach conceptualizes the relevant metric to make equal between individuals as what people are able to do and be across an entire lifetime. These “beings and doings,” or capabilities, include fundamental states, such as nutrition and being clothed, to more complex states, such as feeling safe from harm, enjoying adequate social support, and obtaining higher education (40). The condition of reproductive autonomy thus constitutes an apt candidate for analysis through a capability framework since reproductive decisions continually occur throughout life. In addition, while the issue of reproductive autonomy impacts all, a subset of people exists who both possess the particular kinds of sex organs that allow for the carrying of children and who also face routine marginalization³; centrally, one strength of the capability approach to equality is its ability to address structural kinds of oppression that may only affect certain groups, such as those with birthing potential.

Sen highlights that his approach can examine whether a politically relevant inequality occurs when a disparity exists between agents in any given instance. To illustrate that a capabilities theory of equality can evaluate structural forms of oppression, Sen asks us to consider the fundamental capability of nutrition, noting that deficits in nutrition may not always stem from injustices that demand egalitarian attention. Take the example of a wealthy person who fasts for religious reasons, Person 1, and a person suffering from hunger due to famine, Person 2, two agents who are both unequal in comparison to others in their nutrition status at the same time. The capability approach can point out that the context of both of these individuals is key in determining any relevant wrongdoings; for Sen, the freedom to achieve capabilities should be made equal rather than the achievement of the capabilities themselves (112). Therefore, in the case of the wealthy fasting person, Sen’s capabilities approach allows us to conclude that a politically salient inequality has not arisen since Person A is hungry due to exercising their free choice to fast. However, Person B is hungry due to not having access to food, which is not an expression of their freedom (they would prefer to have food and do not). In other words, the malnourished person in a famine does not choose to be hungry as an expression of their agency but goes hungry against their will due a deficit in food.

The above example regarding nutrition can be linked to the example of EC access to understand why conscientious refusal should be troublesome for capability theorists. Consider two people who are both capable of becoming pregnant, do not utilize any forms of birth control (thus equal in their risk of pregnancy), and do not acquire EC within the effective period after sex. Saliently, one person does not acquire EC because they make the autonomous choice to not forgo a potential pregnancy if one eventually develops, while the other person does not acquire EC because the employee they encounter at their neighborhood pharmacy declines to proceed with the transaction on conscientious grounds. In this case, too, Sen allows us to grasp that the latter person’s outcome did not result from their freedom to achieve the capability of autonomous reproductive decision-making. Rather, they did not obtain EC due to a lack of freedom in their choice. Both the famine and EC examples illuminate how Sen’s approach provides us with the tools to analyze particular capabilities and investigate whether an inequality is being perpetuated.

But, because capabilities may be achieved in a variety of ways by a variety of agents across a lifespan, it is seemingly inevitable that not all agents will have the freedom to pursue those which are most important to them all the time. For example, one might feel that the capability of driving a car every day to work on safe and publicly accessible roads is central to their wellbeing, while another (or perhaps even the same agent) might value the capability of living in an area with low levels of carbon emissions in the air. It is evident, then, that our pursuit of different capabilities can be and routinely are in tension with one another. Rather than shying away from the existence of these tensions, Sen (1992) embraces how a capability analysis is imperfect and is directly attuned to the diversities in our perspectives and social positionings. He describes that the capability approach is not an “all-or-nothing exercise,” but instead, must face head-on the “incompleteness” inherent to interpersonal comparisons of wellbeing (48). Sen thus agrees that the central challenge of his approach is the weighing of what capabilities to include in a given capability set. As a reader might be able to anticipate, Sen does not provide any kind of formula for determining a capability set. However, one may apply his vision of equality in order to rank which capabilities might hold most importance in a given context. This article argues that reproductive autonomy through the barring of conscientious refusal to EC ought to be prioritized in these rankings and policy discussions.

2. Capabilities and emergency contraception

a. Reproductive injustice and a historically informed egalitarianism

The argument against conscientious refusal presented here is primarily motivated by an empirical observation of historical inequity, one which Sen’s view allows us to take seriously. We have already noted how a capabilities approach allows us to see when particular declines in an agent’s wellbeing (such as hunger) might signal an unjust inequality (such as when an agent has no access to food rather than when an agent simply chooses not to eat through fasting). Sen (1992) also notes the dangers of assuming uniformity among a given population, warning against “the tendency to assume away interpersonal diversities … to make [our] analytics simple and easy” (30). We are thus urged to consider the wide variety of contexts and circumstances that agents experience in our evaluations of inequality.

When making these contextual judgments with regard to EC policies, it is apparent that past and existing inequalities impact people’s abilities to make reproductive decisions. Due to interlocking forces of racism and misogyny,⁵ women of color, especially in rural areas, have faced particular barriers and violence in achieving reproductive equality in the United States (Ross 1992, 192). Angela Y. Davis (1981) has famously discussed the pitfalls of reproductive health policies that ignore or erase the specific plights of nonwhite women. She writes,

Birth control—individual choice, safe contraceptive methods, as well as abortions when necessary—is a fundamental prerequisite for the emancipation of women. Since the right of birth control is obviously advantageous to women of all classes and races, it would appear that even vastly dissimilar women’s groups would have attempted to unite around this issue… the historical record of [the birth control movement] leaves much to be desired in the realm of challenges to racism and class exploitation (202).

This prescription by Davis characterizes the lack of regard for how challenges to reproductive autonomy, such as conscientious refusal, might add to historical and existing challenges faced by marginalized women. For example, it is well-documented that thousands of Black, Indigenous, Latinx, and other women of color, especially those deemed poor, disabled, or mentally ill, have been involuntarily sterilized by physicians throughout history, an extreme example of the stripping of reproductive autonomy (Ross 1992; Davis 1981). Today, unequal racial, ethnic, and class disparities persist in numerous pregnancy and birth outcomes. For example, Black, Indigenous, and Alaska Native individuals are up to three times more likely to die from pregnancy-related complications than white individuals, an inequality that increases with maternal age (CDC 2019). The National Survey of Family Growth also reports that roughly 69 percent of pregnancies among Black women and 54 percent of pregnancies among Latinx women were unintended in 2010, far exceeding the rate among white women of 40 percent (Dehlendorf et al. 2010). These examples reflect just a few reproductive health disparities in the United States that contextualize relevant policy matters such as the allowance of conscientious refusal in nonclinical settings. It is evident that birthing populations, both before and after pregnancy, face routine challenges in planning if and when to safely give birth, challenges which are only exacerbated if effective EC methods become additionally inaccessible through conscientious refusal.

Moreover, conscientious refusal poses a particular problem for women and others in rural, or even just abundantly conservative areas, due to their lack of alternatives. While it may still be feasible for an individual to obtain EC from a different provider (it is mandatory that pharmacists who conscientiously refuse refer customers to another store), uniform availability of other readily accessible options does not exist for all populations and geographic areas (McLeod 2010). The unequal distribution of healthcare resources in the United States, particularly in rural areas, suggests that the different state statutes regarding conscientious refusal are all the more problematic for those wishing to prevent pregnancy (Douthit et al. 2015). Arguing that someone faces a mere inconvenience when denied EC by a pharmacist who conscientiously refuses falsely assumes that someone has access to other stores and pharmacies. However, researchers have found that women of color are especially more likely to live in “pharmacy deserts” whereby access is more limited to accessing contraceptives of all kinds (Barber et al. 2019; Guadamuz et al. 2021). As a result, agents may have to travel very far (if at all) to find a store or pharmacist who will grant them EC or may abandon seeking EC altogether. In contrast, some individuals may be readily able to obtain EC in their area. A pharmacist who objects to the dispensing of EC on conscientious grounds may only pose an inconvenience for people who have an abundance of healthcare resources and other resources (stable income, transportation, etc.), which underscores that the freedom to pursue one capability is often determined by one’s freedom to achieve other capabilities. For example, if an individual does not have the free ability to access reliable transportation, seek regular healthcare, and eat wholesome foods, then that individual’s ability to freely access EC and prevent pregnancy is intuitively also affected. The overlapping and interconnected nature of capabilities shows that a lack of freedom to pursue one can hinder the pursuit of another. In summary, conscientious refusal creates a barrier for individuals seeking the free ability to obtain EC, which is only further denied by other structural inequalities such as poverty, lack of transportation, and lack of access to food.

Because of the disparities noted above, this article does not advocate for a state-by-state solution to the issue of conscientious refusal, since such an approach would maintain the status quo and would not promote equality in terms of emergency contraceptive access. The moderate view, or the state-by-state approach, that defends conscientious refusal except in rural areas lacking access has most famously been argued by Fenton and Lomasky (2005). While their rightful concern for pharmacists’ ability to exercise religious views is warranted, these authors do not fully consider the background of existing inequalities that individuals face when seeking EC; I claim that these barriers can exacerbate the potential harms caused by conscientious refusal. Rather, this article endorses the view of McLeod (2010) who argues that denying an individual an emergency contraceptive prescription does not constitute a mere “inconvenience” but poses a serious inequality. If one is committed to a capability view of equality, then one should take issue with how conscientious refusal places an undue and unfair burden on individuals seeking to prevent pregnancy who live in areas with a higher prevalence of providers who conscientiously refuse. Put simply, to allow conscientious refusal only further exacerbates the obstacles faced by certain groups when pursuing the capability of reproductive choice, while to disallow conscientious refusal creates steps to empower people in their equal pursuit of reproductive autonomy.

b. Competing capabilities: Religious expression and reproductive choice

The central objection to this article’s thesis is that a competing capability, the pursuit of religious expression, overrides or at the very least complicates all people’s free and equal pursuit of reproductive autonomy. In other words, if the argument is that people should have free and equal access to EC, one could point out that people should also have the free and equal ability to practice religion. How, then, can reproductive autonomy take priority over religious expression through the outlawing of conscientious refusal to EC? It is the case that the dutiful expression of one’s religion often has direct and immense implications for a person’s identity, wellbeing, and relationships. For many, the capability of religious expression may far outweigh the ability to achieve reproductive autonomy, or their religion may dictate precisely how they conceptualize and judge their own reproductive decisions. This objection neatly sums up the difficulties in making judgments about how our political structures and mechanisms might best promote equality given a plurality of wellbeing perspectives, especially since Sen leaves the question open of which capabilities a government should ensure for its citizens (Moss 2014, 68). It is thus perfectly possible for an egalitarian committed to the capability approach to argue that the state of being free from religious and moral distress ought to take precedence over removing reproductive challenges or barriers.

This position is astute and persuasive, but I will underscore that it does not pose a serious issue for this article’s proposal. One central facet of the capability approach is how an agent’s functionings, or what one is able to do and be, is constitutive of that agent’s wellbeing. The capability approach thus tracks how free one is to pursue these “constitutive elements.” Sen (1992) puts the ability to choose different functionings in other terms as the ability to “choose a lifestyle.” If we return to the former example, we observe:

Fasting as a functioning is not just starving; it is choosing to starve when one … [has] other options. In examining a starving person's achieved well-being, it is of direct interest to know whether he is fasting or simply does not have the means to get enough food. Similarly, choosing a lifestyle is not exactly the same as having that lifestyle no matter how chosen, and one's well-being…depends on how that life-style happened to emerge (52).

We can thus grasp that, for Sen, a capability set reflects the overall set of options that one might have in choosing their life; whether one goes hungry, unhoused, or unclothed all make up the fundamental features of how one’s life goes. It seems appropriate then that the ability to forgo pregnancy also be considered a primary capability given that parenthood can (but of course need not) dramatically alter how one’s life goes. It is not as clear how the expression of one’s religious or moral preferences at the workplace holds equal force in the direction and shaping of one’s lifestyle. As has been noted before, there is no doubt that religious expression makes up an important capability and impacts one’s wellbeing. Our question, however, is how a democratic society might weigh the tension between reproductive and religious capabilities, and it is argued that barriers to EC complicate the ability to prevent pregnancy which poses substantial effects for one’s future plans. We can restate this conclusion by revisiting Sen’s articulation of choice and wellbeing; one may choose to live a robustly religious lifestyle (however one chooses to define such a life) without conscientious refusal to EC being legal, as there are many avenues and opportunities for religious expression over time. However, one may face much greater difficulty in choosing a reproductively autonomous lifestyle while conscientious refusal to EC is permitted due to how critical obtaining EC is for mitigating unintended pregnancies.

Furthermore, the innumerable physical risks involved with carrying fetuses to term solidifies that reproductive autonomy represents a fundamental capability that should not be jeopardized if avoidable. Pregnancy directly affects one’s body and, as a result, has direct impacts on health and wellbeing. Though quite simple, it is important to point out that the physical risks involved in pregnancy can impede the pursuit of all other capabilities, much like other capabilities related to bodily functions. Just as extreme hunger limit’s an agent’s ability to pursue enriching capabilities, such as gaining an education or engaging in social activity, maternal complications or mortality also disrupt the ability to achieve important functionings. The physical dangers of pregnancy are especially relevant when we reflect again on who may be most adversely impacted by conscientious refusal policies. While all people capable of becoming pregnant face potential harm and complications, maternal mortality rates are highest among women of color living in rural and poor communities (WHO 2021). It thus seems plausible to reject the claim that religious freedom could just as easily take priority over reproductive autonomy in a ranking of capabilities. Rather, reproductive autonomy holds special status as directly linking to one’s health and ability to experience other fundamental capabilities.

Finally, one underlooked, yet seemingly crucial, difference between the freedom to pursue the capabilities of religious expression versus reproductive autonomy is the timeframe in which these can be achieved. EC methods are labeled “emergency” for a reason; policymakers must remember that the opportunity to prevent the formation of a pregnancy lasts only a few days (Devine 2012, 46). Moreover, EC is more efficacious at terminating pregnancy the sooner it is taken (Bigbee et al., 2007). These short periods, especially in the face of potential compounding barriers such as lack of financial access and stable transportation, should be taken into consideration. In general, people may express religiosity throughout the courses of their lives. Some people, differently, may have just a day or a few hours to obtain EC to avoid the future effects of an unintended pregnancy.

3. Conclusion

Bodily autonomy, expressed through seeking and obtaining an emergency contraceptive, ought to take precedence over religious expression when employing a capability approach to equality. However, it is not the case that reproductive decisions should always outweigh the religious convictions of others. I have minimally shown that a capability approach to equality can justify a prohibition against conscientious refusal to EC when weighing broadscale inequalities in birth outcomes and access to other resources, the limits of religious expression, and pragmatic concerns about time and efficacy.

Sen (1992) writes, “one consequence of adopting … a ‘partial ranking’ view of interpersonal comparisons and of the assessment of equality is to admit the possibility that in many situations no clear judgement can be made as to whether there is more equality in situation a than in situation b” (134). It is clear that expressions of reproductive and religious autonomy will continue to clash in our public policy debates, and there are often no definitive answers as to how best to respect the promotion of both when they appear at odds. This article has attempted to assess one such tension, laws that permit conscientious refusal to the dispensing of EC, and parse out how we might advocate for the changing of such policies. I have specifically argued that conscientious refusal adds further barriers to people aiming to achieve the capability of reproductive autonomy, and I highlighted a number of reasons for why this autonomy is so fundamental. In particular, this article has highlighted how seeking EC occurs for many within a background of historical injustices, necessary context for why conscientious refusal policies exacerbate health disparities. These inequalities should be avoided whenever possible because they pose barriers to the free and equal pursuit of reproductive autonomy, a fundamental capability.

While the scope of this argument focuses on the issue of conscientious refusal policies and their impacts on EC access, this article has made no claims about the multitude of other inequalities that hinder someone’s ability to obtain an emergency contraceptive. Put differently, this article does not claim that prohibiting conscientious refusal will eliminate all barriers to acquiring EC, as numerous others persist (such as a lack of access to pharmacies, high costs, ID requirements, and age restrictions). This article highlights how one theory of equality, Sen’s capability approach, can justify the prohibition of conscientious refusal to emergency contraception. Ultimately, the capability approach allows us to scrutinize the creation of obstacles during urgent health decisions that pose lifelong implications.