Updated 11:55 p.m. This story was updated to reflect the Justice Dept announcement that it would appeal the judge's order.
At first glance it looked like a breakthrough. In a statement released Tuesday night, the Food and Drug Administration announced it was approving Plan B, the morning-after pill, for off-the-shelf sale to anyone 15 or older. Until now, kids under 17 have needed a doctor’s prescription to get emergency contraception, and Plan B has been locked behind pharmacy counters.
The approval was an “important step forward,” in Planned Parenthood’s delicate phrase, but it was a stopgap. But the real news came 24 hours later, when the Obama administration announced that it will contest a recent court decision ordering it to lift all restrictions on the sale of Plan B. By complying with the court, the president could have corrected a misstep he made in the heat of the 2012 election campaign. Instead, it has decided to escalate an assault on women’s rights and the FDA’s scientific integrity.
Sixteen months ago, the FDA determined that Plan B One-Step, a pill that can prevent pregnancy if taken shortly after unprotected sex, belonged in the same class as aspirin and Tylenol. After an exhaustive review by independent scientists, the agency had decided that Plan B was “safe and effective and should be approved for nonprescription use for all females of child-bearing potential.”
Unfortunately it was an election year, and the president wasn’t looking for new ways to offend the religious right. The administration denies that politics had anything to do with what happened next. But in an unprecedented act of political meddling, Health and Human Services Secretary Kathleen Sebelius overruled the FDA’s scientific advisors. On December 7, 2011, just hours after FDA Commissioner Margaret Hamburg announced the agency’s intentions, Sebelius claimed on her own authority that “the data . . . do not conclusively establish that Plan B One-Step should be made available over the counter for all girls of reproductive age.”
Sebelius—a former Kansas governor with no medical training—ordered the FDA to reject the approvable application, and the president publicly backed her, saying it was “common sense” to restrict young teens’ access to emergency contraception.
Plan B’s manufacturer, Teva Women’s Health, got the administration’s message. In an amended application, filed last year, the company proposed selling the drug only to people who could prove they were at least 15 years old. Under the revised application—which FDA approved this week—Plan B One-Step will be labeled “NOT FOR SALE TO THOSE UNDER 15 YEARS OF AGE *PROOF OF AGE REQUIRED* NOT FOR SALE WHERE AGE CANNOT BE VERIFIED.” A code on the package will prompt cashiers to check ID and turn away anyone who can’t prove her age, no matter how desperately she wants to avoid pregnancy.
The story would end right there if health advocates had accepted defeat in 2011. But when Sebelius overruled the FDA, the Center for Reproductive Rights and other plaintiffs sued her in federal district court for corrupting the agency’s scientific review process. And three weeks ago they won. In an April 5 decision, District Court Judge Edward Korman excoriated Sebelius and Obama for politicizing the drug approval process. He deemed their actions arbitrary, capricious and unreasonable, and ordered the administration to approve Plan B for unrestricted sale within a month.
Rather than accept the court's findings, the Justice Department will now fight an appellate-court battle with the president’s usual supporters.
They're already feeling betrayed. NOW President Terry O’Neill dismisses the FDA's watered-down approval as “an incremental advance, made against the hostility of people who claim they’re on our side.” Nancy Northup, president and CEO of the Center for Reproductive Rights, says it “does nothing to address the significant barriers that far too many women of all ages will still find if they arrive at the drugstore without identification.”
President Obama may truly believe that he and Sebelius exercised “common sense” by restricting young teens’ access to emergency contraception. The religious right uses the same reasoning in all its attacks on reproductive freedom. But this president said he was different. “As long as we've got to fight to protect a woman's right to make her own choices about her own health, I want you to know that you've also got a president who's going to be right there with you fighting every step of the way,” he told a Planned Parenthood gathering last week.
It seems like a long time ago, doesn’t it?