The Ombudsman has submitted comments to Minister Izabela Leszczyna on a draft regulation on the so-called "morning-after pill," providing for a pilot that would allow pharmacists to issue a pharmaceutical prescription for emergency contraception if it is justified by a patient's health condition related to the risk of an unplanned pregnancy. Doubts abound.
RPO: List of concerns regarding the draft regulation on the so-called "morning-after pill
Published April 18, 2024 10:35
The Ombudsman has many concerns about the draft regulation on the so-called "morning-after pill.
- The legitimacy of legislation aimed at facilitating women's access to so-called emergency contraception falls within the sphere of political discretion of the legislator
- However, the regulation may not transform, modify or supplement the content of the law from which the authorization to issue it derives
- The Pharmaceutical Law allows the issuance of a pharmaceutical prescription only in "health risk" situations, which do not include the risk of unplanned pregnancy
- In addition, adoption of the project would result in the pharmacist gaining broader powers than the physician in providing health services to minor patients
- A regulation whose entry into force will lead to an addition to or change in the content of statutory norms may be assessed as unconstitutional
- There are also doubts as to whether the purpose of the draft regulation can be realized in the form of a pilot program under the Law on Health Care Services
- These are the Ombudsman's main comments on the draft regulation of the Minister of Health introducing a pilot program to facilitate access to the so-called "morning-after pill"
The provisions contained in the decree under review will lead to the supplementation and modification of existing statutory norms. Meanwhile, as explained above, this is not the role of a regulation in the system of sources of law of the Republic of Poland. A regulation, the entry into force of which will lead to supplementation or modification of the content of statutory norms, can be assessed as inconsistent with Article 92 of the Constitution.
Marcin Wiącek also stresses that the opinion does not concern the legitimacy of regulations aimed at facilitating women's access to so-called emergency contraception. This is largely a matter that falls within the sphere of political freedom of the legislator. Nevertheless, the current legislation introduces certain rules in this regard - including rules for pharmaceutical prescriptions - which can only be amended by a law, and not by an act implementing the law, i.e. a regulation.
Source: RPO
