Just one day after the Food and Drug Administration (FDA) announced it would allow one brand of emergency contraception to be sold over-the-counter and without a prescription to people ages 15 and up, the Obama administration capitulated further to anti-choice conservatives and appealed a lower court ruling directing the agency to make emergency contraception available over-the-counter and without prescription to anyone who needs it, regardless of age.
On April 5, U.S. District Court Judge Edward Korman ordered the FDA to make levonorgestrel-based emergency contraception available without a prescription and without point-of-sale or age restrictions within 30 days. The ruling, a significant victory for science-supported public health policy, was in response to the Center for Reproductive Rights’ renewed lawsuit against the agency to expand over-the-counter access to the morning-after pill to women of all ages. In his 59-page decision, Judge Korman specifically called out the government’s stalling tactics, noting the “FDA has engaged in intolerable delays” amounting to an “administration agency filibuster” that plainly put politics before science.
The Obama administration has also asked Judge Korman to stay his April court order pending the outcome of the appeal.
Nancy Northup, president and CEO at the Center for Reproductive Rights, said in a statement:
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Women who urgently need emergency contraception have been delayed in getting it or denied access entirely for more than a decade because of the political maneuverings of the last two presidential administrations.
The federal court has made clear that these stalling tactics were based purely on politics, not science.
We are deeply disappointed that just days after President Obama proclaimed his commitment to women’s reproductive rights, his administration has decided once again to deprive women of their right to obtain emergency contraception without unjustified and burdensome restrictions.
The appeal will not affect the FDA’s decision on Plan B but instead will likely address the broader issue of whether the agency acted arbitrarily and capriciously in setting the age restrictions to begin with and could challenge the precedent of a federal judge striking down an order by Department of Health and Human Services Secretary Kathleen Sebelius, a sitting White House cabinet member. With the administration in the end stages of negotiating a final compromise on the contraception benefit in Obamacare, the decision to appeal the emergency contraception ruling could have as much to do with the contraception benefit as the FDA.
It’s also unclear what, if any, explanation the administration can offer in its decision to advocate for limiting access to emergency contraception, beyond the belief—expressed by the president but wholly unsupported by science—that individuals younger than 15 would be potentially harmed by having access to it. And while administrative agencies like the FDA have broad rule-making authority, Judge Korman, a conservative judge, decimated the administration’s purported concerns in a scathing opinion that detailed the politics and utter disregard for settled science exhibited by HHS in over-ruling the FDA’s original decision. The science is not on the administration’s side in this decision, and the politics shouldn’t be either.