It’s Not Plan B If You Can’t Get It

Elizabeth Schulte May 14, 2013

Just as Plan B, or the "morning-after pill," looked like it would finally became available to women over the counter, the Obama Justice Department put the brakes on this victory for women's reproductive rights.

The morning-after pill averts an unwanted pregnancy by preventing ovulation or fertilization of an egg. After a review of the pill's safety–and a decade of stalling under both the Bush and Obama administrations–the Food and Drug Administration (FDA) determined in 2011 that Plan B should be made available to all women, without a prescription, on the shelves with other contraception, and without any age restriction.

But the Obama administration, in the person of Health and Human Services (HHS) Secretary Kathleen Sebelius, intervened to reimpose an age limit of 17 and older for obtaining Plan B without a prescription.

In early April of this year, a federal judge in New York issued a court order overturning that rule and making the pill (including its less expensive generic counterpart) available over the counter to women of any age. District Court Judge Edward Korman called the 17-and-older rule "arbitrary, capricious and unreasonable," giving the adminstration until Monday to appeal.

At the end of April, the FDA announced that the age restriction should be dropped to 15 years old and above. This move was likely to soften the blow of what they did next–on Monday, the Obama Justice Department appealed Korman's decision, going to court to argue in favor of an age restriction.

On top of that, the Justice Department demanded an immediate suspension of the judge's court order, arguing that if the pills went on the shelves while the decision was being appealed, it would cause "substantial market confusion."

They're right about the confusion part. Women might exercise their right to obtain Plan B without any obstacles–and then be confused when the Obama administration takes away that right. If the Obama White House wants to avoid this "confusion," why won't it allow affordable Plan B on store shelves, where any woman can have access to it?

What's most confusing of all is that the Democratic Obama administration is restricting access for some women to this important contraceptive–when Obama is supposed to be committed to women's reproductive rights.

In issuing his order in early April, Korman had some choice words for the administration. "It turns out that the same policies that President Bush followed were followed by President Obama," said Korman, who was nominated by Ronald Reagan. Even worse, Korman pointed out, the Obama White House waited until after the FDA ruling at the end of the month, which it applauded, to come down against his order.

"You're disadvantaging young people, African Americans, the poor–that's the policy of the Obama administration?" Korman asked.

Non-prescription sales of Plan B became available to women in 2006, but only for women 18 and older. In 2009, the minimum age was lowered to 17. In 2011, the FDA decided to lift the age restriction, but HHS Secretary Sebelius overruled the decision.

At the time, Obama claimed he didn't get involved in Sebelius' decision. He told reporters:

I will say this, as the father of two daughters. I think it is important for us to make sure that we apply some common sense to various rules when it comes to over-the-counter medicine. And as I understand it, the reason Kathleen made this decision was she could not be confident that a 10 year old or an 11 year old going to a drugstore should be able–alongside bubble gum or batteries–be able to buy a medication that potentially, if not used properly, could end up having an adverse effect.

Let's set aside the fact that 10-year-olds rarely need Plan B–and if they did, what kind of cruel individual would deny it to them?

There are plenty of medications far more harmful than Plan B available on store shelves today. As Susan Wood, who resigned from the FDA in 2005 over the Bush administration's intransigence on this very issue, wrote in 2011:

Apparently there is no problem in allowing younger teens to purchase products such as acetaminophen, and others with known and serious risks, over the counter. There are no age restrictions for condoms, spermicides or treatments for yeast infections, either. Indeed, for no other over-the-counter medication has the FDA ever required extra data for a particular age group…

But somehow, the prescription requirement for Plan B–which is very safe and impossible to overdose on–remains in place for those younger teens who are in the unfortunate situation of being at risk of pregnancy and who need emergency contraception immediately.

The Justice Department's decision to try to block Korman's order isn't about "protecting young women"–it's about continuing the attack on young women's right to control their own bodies. If the appeal succeeds, it would make it impossible for most young women to acquire the medication they need.

Even the FDA's less stringent 15-years-and-older cutoff is problematic, since 15-year-olds rarely have the kind of government-issued proof of age that would be required, like a passport or a birth certificate.

If a woman can get pregnant, she should be to obtain contraception, which is what Plan B is. It should be no one else's decision but her own–not her parents, not a pharmacist, no one but her.

This attack affects all women. No woman should have to rely on a request to a pharmacist or have to prove their age before they can acquire the morning-after pill.

A woman has to begin Plan B within 72 hours of unprotected sex for it to work. So if a woman lives too far from a pharmacy, or needs Plan B during the hours a pharmacy is closed, she could be unable to prevent what should be a completely preventable pregnancy.

And if women are going to have access to Plan B, they're going to need to be able to afford it. Currently, Teva Pharmaceuticals is the only company with FDA permission to provide a single-dose morning-after pill over the counter. The cost is about $50, no small sum for many women. Korman's order also called for making other versions, including generics, available.

Despite all these facts, the Obama administration continues to drag its feet on this important issue of women's reproductive rights–a pill that has the ability to improve the lives of tens of thousands of young women who face an unintended pregnancy.

On the legal front, the Center for Reproductive Rights plans to answer Monday's filing within 10 days. Then, the appeals court will issue a ruling on whether to delay enforcement of Korman's ruling.

Reproductive rights activists around the country are organizing to call on the Justice Department to drop its appeal–and to demand that all women have access to Plan B–over the counter, without restriction and at a cost that is affordable to all women.

New York City activists, who have organized speak-outs inside drugstores to demand that Plan B be put on the shelves where it belongs, are calling for a week of actions around the country. In the coming weeks, activists are planning to bring the fight to Obama's doorstep in Washington, D.C.

The Obama administration is making it clear that they aren't serious about making Plan B readily available to all women. We have to show them that we are serious about it.

This article originally appeared at