Correction, April 24, 5:55 pm: A version of this article incorrectly noted that NWL organizer Erin Mahoney is based in Gainesville, Florida. She is based in New York City.
On April 4, Judge Edward R. Korman ruled in Tummino v. Hamburg that levonorgestrel-based emergency contraception (EC) must be made available over-the-counter to girls, women, and their partners of all ages. Immediately, news of the decision made its way through mainstream media outlets, which often characterized it as being a rebuke of the Obama administration by a middle-of-the-road judge.
For example, Politico noted the many years that the Center for Reproductive Rights (CRR) wrangled with the Food and Drug Administration (FDA) in court over making EC available over-the-counter, though it focused primarily on the high-level political impact at the Department of Health and Human Services (HHS). But what did it really take for a Reagan-appointed federal judge to make one of the most critical reproductive justice rulings of the year, and possibly the decade? While Korman’s evaluation of the FDA’s and plaintiffs’ arguments has, over the years, been essential to this victory, the case emerged in the first place because women’s rights activists have remained vigilant about EC accessibility since 2003.
“This decision is a victory of the feminist movement,” Erin Mahoney, a National Women’s Liberation (NWL) organizer in New York City, told RH Reality Check. Along with several other women, Mahoney was a plaintiff in Tummino. “It is a testament to movement politics, which influenced policy under both Bush and Obama. If we’re not building a movement, we won’t get anything from a Democrat or a Republican.”
NWL’s EC activism spanned a decade, beginning in earnest during the Bush years, far before HHS Secretary Kathleen Sebelius issued her controversial 2011 decision denying over-the-counter EC access for girls under age 17. The FDA approved EC in 1999, and political battles over the drug have raged ever since. The Bush Administration fought against making the drug available, first by requiring prescriptions and then by refusing to make the drug over-the-counter for women under age 18. Then the Obama administration, in what appears to be bone-throwing to social conservatives, fell in step with the Bush administration’s position.
As soon as political forces weighed in on the drug, feminists from NWL, a group with roots in 1960s and 70s feminist organizing, began pushing back. Over the years, the group exposed the problems with the FDA’s policy by writing articles, staging sit-ins at the FDA headquarters, and handing out free emergency contraception to individuals on the street (in clear violation of the FDA’s policy).
According to Mahoney, NWL’s activism helped persuade the Bush administration to drop its prescription requirement for women age 18 and older in 2006. Mahoney and her NWL colleagues mobilized women throughout the country to testify at FDA hearings about why the drug is crucial for women and girls to prevent pregnancy. (Mahoney and other NWL organizers were also arrested in 2005 by the Department of Homeland Security for participating in a sit-in that blocked the entrance to the FDA building.)
Though FDA leadership has seemed unmoved by NWL and other groups’ sentiments over the years, NWL believes these public comment opportunities created greater space for scientists to support changing the FDA’s policy.
“I think speaking out at the panel hearings had an impact, as the scientific experts who heard our testimony voted in favor of our position,” Mahoney said. “It was always political appointees at the top of the FDA who were disagreeing.”
Perhaps most important, Mahoney and her colleagues’ activism led them to serve as plaintiffs in the case against the FDA. Mahoney, Annie Tummino, and several other women “were initially approached because they were handing out the pills to any woman who needed them in defiance of the prescription requirement and were also leading publicly a campaign using an uncompromising position for full over-the-counter access with no restrictions,” Andrea Costello, an attorney at the Partnership for Civil Justice Fund, told RH Reality Check. Along with CRR, Costello has worked on the case since 2005.
With the help of these plaintiffs, CRR first filed a suit in 2005 to win over-the-counter access for women age 17 and older. They were ultimately successful in 2009—as in the recent ruling, in the Eastern District of New York with Judge Korman writing the opinion. CRR also petitioned for over-the-counter access for women of all ages, resulting in tedious litigation that ultimately led to the April 4 victory.
As Jaclyn Friedman noted recently in the American Prospect,“Exhausted just reading about [all this work]? Then you can imagine how the activists, scientists, and lawyers who’ve fought this battle for so long must feel. This new ruling is an enormous victory for them and for us, and a testament to their tenacious efforts.”
Daily mainstream news coverage of impact litigation feeds a perception that rulings result from unbiased judges who wear long robes and contemplate inside airtight chambers that are impermeable to social movements. But the tale of this EC victory recalls the saying “justice doesn’t just happen.” Organizers make it happen, and the best organizers help define what justice means.