Obama Administration Agrees to Comply With Court Order on Emergency Contraception


Public health and women’s rights advocates are celebrating Monday night’s announcement that the Obama administration will comply with U.S. District Court Judge Edward Korman’s April 2013 court order to make emergency contraception (EC) available over-the-counter without age restrictions. In a letter sent to Judge Korman by the U.S. Department of Justice (DOJ), the administration stated that it would submit a plan for complying with Korman’s order. If the plan is approved, efforts to make EC available will move forward, and the department will drop its appeal of Korman’s April ruling.

In the letter, DOJ wrote:

We write to advise the Court that the Food and Drug Administration (FDA) and the Department of Health and Human Services (HHS) have complied with the Court’s April 10, 2013, judgment in the above-referenced case by granting the 2001 Citizen Petition and making Plan B One-Step (PBOS) available over-the-counter (OTC) without age or point-of-sale restrictions as described below. It is the government’s understanding that this course of action fully complies with the Court’s judgment in this action. Once the Court confirms that the government’s understanding is correct, the government intends to file with the Circuit Court notice that it is voluntarily withdrawing its appeal in this matter.

The letter further noted that the administration will focus on plans to increase access to Plan B One-Step in keeping with the court order, which gave discretion to the Food and Drug Administration (FDA) to decide whether or not Plan B (a two-pill variation of emergency contraception) meets the same safety criteria as Plan B One-Step (a single-pill version of EC tested among adolescents and pre-teens as young as 11 years of age).

It would be difficult to exaggerate the importance of this new development in a decade-long case of scientific and public health malfeasance. The fight over emergency contraception began under President George W. Bush, but continued into the second term of the Obama administration. First, the Department of Health and Human Services, backed up by the White House and the president himself, overruled a 2011 decision by the FDA to make emergency contraception available over-the-counter without age restrictions. Advocates found themselves in a familiar place, back in court, but facing an unfamiliar opponent, an ostensibly pro-choice and pro-science administration that sought to limit access to an indisputably safe and time-sensitive medication meant to prevent unplanned pregnancies. The administration also stepped in to appeal a 2012 ruling by Judge Korman requiring the administration to develop a plan by early April for ensuring over-the-counter access to EC. But the administration appealed that decision as well, and later lost in court, leaving them subject to Korman’s order. The one constant has been Judge Korman who, over a period of at least seven years of overseeing cases on emergency contraception, had clearly grown frustrated with the constant delays in and excuses for not making EC available in a timely manner to all who need it.

Today’s decision by the administration is being widely lauded. Senator Patty Murray (D-WA) stated, After far too long of a delay, science has prevailed. Today’s move by the Administration means the safety and effectiveness of Plan B, not politics, will dictate access. Plan B is an essential part of women’s basic health care and this letter to the court is a major step in keeping it that way.”

In a statement, Jessica González-Rojas, executive director of the National Latina Institute for Reproductive Health, said, “We applaud the administration for allowing good science and common sense to move forward. This is a decision that will benefit women across the country, especially Latinas. For too long, this important backup birth control method has been kept behind the counter and out of reach, especially for immigrant women and aspiring citizens of all ages, who are less likely to have government identification.”

Emergency contraception is for those times when unprotected sex does occur, when contraception or condoms might fail, or as a result of rape. Emergency contraception provides a safe, effective way to prevent pregnancy and reduce the need for abortion. Evidence collated by the Planned Parenthood Federation of America underscores:

  • Emergency contraception is safe for use by women of all ages and that teens have equally as successful health outcomes as adult women when using it.
  • Multiple studies have shown that teens are as likely as adults to use emergency contraception correctly and that both groups report little if any difficulty using the method.
  • Research also has shown that teens understand that emergency contraception is not intended for ongoing, regular use and that the rates of unprotected sex do not increase when they have easier access to emergency birth control.
  • Nearly half of all pregnancies that occur in the United States each year are unintended. The average age for first-time sex is 17, and roughly 750,000 pregnancies will occur among 15- to 19-year-olds each year.

The decision, however, does not include generic forms of emergency contraception, pointing to the the next front in the effort to ensure universal access to EC, as affordability of the method is critical to access.

“Now that the appeals court has forced the federal government’s hand, the FDA is finally taking a significant step forward by making Plan B One-Step available over the counter for women of all ages,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “But the Obama Administration continues to unjustifiably deny the same wide availability for generic, more affordable brands of emergency contraception.”

“We are pleased that women should soon be able to buy Plan B One-Step without the arbitrary restrictions that kept it locked behind the pharmacy counter when they needed it most urgently,” Northup continued. “But we will continue to fight for fair treatment for women who want and need more affordable options.”

The administration’s decision not to continue it’s appeal of Judge Korman’s order is not an ending but rather the beginning of the next chapter in achieving universal access to EC. Critical next steps in this long-running struggle will be to educate pharmacists and the public about the safety of emergency contraception, ensure it is made available as widely as possible, ensure that generic and affordable forms of EC are also made OTC, and ensure that merchants and cashiers understand that no identification is necessary. Because when it comes to emergency contraception, time is of the essence.

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  • Maripoya

    Yeah, victory!!! We can defeat those who stand against our basic human rights; sometimes the odds just seem so set against us, but we can never give up fighting.

  • BJ Survivor

    It is also important to ensure that those who dispense it understand that it is CONTRACEPTION (i.e., prevention of fertilization, and NOT abortion, i.e., termination of an established pregnancy). Far too many forced-birther (AKA “pro-lifer”) and pro-choice-but’er pharmacists and lay persons continue to interject that EC is the same thing as abortion, despite all evidence to the contrary.