Judge Removes Restrictions On Plan B

Last year, the American College of Obstetricians and Gynecologists (ACOG) issued a report recommending that oral contraceptives be made available to women over-the-counter (without a prescription). They declared the drug was safe enough, and making it available over-the-counter would make it available to more women. Now it looks like the first step toward  achieving that has finally been taken, at least for one type of contraceptive -- the Plan B contraceptive (more commonly called the "morning-after pill").

A federal judge in New York has ordered Plan B to be sold over-the-counter (beginning in 30 days), and has removed any age restrictions on the drug. In other words, he has ordered the drug to be available without prescription for any female old enough to be able to get pregnant. Here is how this landmark decision is described in an e-mail I got yesterday from WORD (Women Organized to Resist and Defend):

Today, a U.S. federal judge ordered that the Morning-After Pill be made available "without a prescription and without point-of-sale or age restrictions within thirty days."

Judge Edward R. Korman of the U.S. District Court for the Eastern District of New York issued his Memorandum Opinion and Order in Tummino v. Hamburg which reversed a prior decision by the Food and Drug Administration (FDA) and Health and Human Services (HHS).

Judge Korman found that "[t]hese emergency contraceptives would be among the safest drugs sold over-the-counter." 

Citing the Obama administration's "unjustified departures" from established policy to make safe medications available to the public, the court found that the administration invoked arguments that were an "excuse to deprive the overwhelming majority of women of their right to obtain contraceptives without unjustified and burdensome restrictions."

Referring to "political interference" from the White House, the judge stated "the motivation for [Secretary Sebelius'] action was obviously political. ... [I]t was an election year decision that 'many public health experts saw as a politically motivated effort to avoid riling religious groups and others opposed to making birth control available to girls.'" 

And here is a little background on the court fight:

The Partnership for Civil Justice Fund (PCJF) represents grassroots feminists activists with National Women’s Liberation (NWL) and 15 year-old Anaya Kelly in Tummino v. Hamburg, the lawsuit against the Food and Drug Administration and Health and Human Services to remove all restrictions on over-the-counter access to the Morning-After Pill (also known as Plan B One-Step or “emergency contraception”) for all women and girls in the United States. As of the court’s ruling today, emergency contraception was kept behind a counter, only available without a prescription for women age 17 and older, and government issued identification had to be shown to buy it.

The lawsuit, originally filed on January 21, 2005, uncovered evidence that the Bush Administration pressured FDA review staff to enact an age limit on the pill for political reasons. On March 23, 2009, the Court ruled that the FDA “acted in bad faith and in response to political pressure,” “departed in significant ways from the agency’s normal procedures,” and engaged in “repeated and unreasonable delays.” The Court ordered the FDA to make Plan B available over-the-counter without a prescription to 17 year olds (the drug was previously limited to women ages 18 and up). The Court also ruled that the FDA had to reconsider whether to approve a Citizen Petition, filed by women’s health and reproductive rights organizations in 2001, asking for unrestricted over-the-counter status for women and girls of all ages.

In December 2011, the FDA finally decided to eliminate the unnecessary age restriction, but in an unprecedented move, HHS blocked the change with President Obama’s support. The FDA then denied the Citizen Petition. On February 8, 2012, Plaintiffs moved to re-open the case, added HHS Secretary Kathleen Sebelius as a Defendant and filed a motion for preliminary injunction and for summary judgment. 

Unfortunately, this may not be the end of this fight. The Justice Department is considering an appeal, and that will probably happened since this administration is not known for its political courage (just look at how long they drug their feet on same-sex marriage, waiting until numerous polls showed it to be popular with a majority). They should not fight it any further though, and in fact, should follow the recommendation of the ACOG (the real experts on contraceptives) and make all oral contraceptives available over-the-counter, and without age restrictions. The drugs are safe, and doing so would prevent many unwanted pregnancies (and abortions).