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Written by Gretchen Borchelt, Senior Counsel
National Women’s Law Center

Today, a federal district court confirmed that the FDA put ideology before science when it decided to limit non-prescription access to emergency contraception to individuals 18 and older.

The court ordered the FDA to make Plan B, the emergency contraceptive pill that’s currently on the market, available to women age 17 and older without a prescription within 30 days. And the court ordered the FDA to reconsider whether to make the drug available to women of all ages without a prescription.

The court decided that the FDA’s decisions were "arbitrary and capricious [the legal standard] because they were not the result of reasoned and good faith agency decision-making." Here are a couple more highlights from the decision explaining why:

  • "The FDA repeatedly and unreasonably delayed issuing a decision on Plan B for suspect reasons. . . ."

  • "[T]he record is clear that the FDA’s course of conduct regarding Plan B departed in significant ways from the agency’s normal procedures regarding similar applications. . . ."

  • The FDA’s justification for making 17 year olds get a prescription "lacks all credibility."

Now that we have a new Administration and new officials nominated to head the FDA, we look forward to an agency review that emphasizes science, not ideology. We are optimistic the FDA will remove the barriers that keep women from accessing EC, giving women of all ages a second chance to prevent pregnancy.

Cross-posted from NWLC's blog.

Originally posted to National Women's Law Center on Mon Mar 23, 2009 at 02:19 PM PDT.

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Comment Preferences

  •  There needs to be a law (5+ / 0-)

    to require that pharmacies dispense EC to anyone who wants it, and doesn't allow any exceptions to this rule.

    If you are a pharmacist who has religious or other objections to dispensing birth control or emergency contraception or any other drug, you should quit or be fired.

    The Rethug Party are anti-American traitors. The Congressional Rethugs form a fifth column intent on destruction of America.

    by IhateBush on Mon Mar 23, 2009 at 02:30:04 PM PDT

    •  I whole-heartedly agree (3+ / 0-)

      with this:  

      If you are a pharmacist who has religious or other objections to dispensing birth control or emergency contraception or any other drug, you should quit or be fired.

       I'm so sick of hearing that we should have to respect the rights of employees who won't do their job.  If you take a principled stand on something, fine, I'm all for that, but why would you accept a job that requires you to do something you don't believe in anyway.  Take the principled stand and don't accept the position (and the paycheck).

  •  This is great news (3+ / 0-)

    But everyone is so preoccupied with banks, banks, banks, that no one is paying attention to reproductive choice - except the courts and our PREZ!  Thanks for the diary.

    Pro-Choice and Proud of It!

    by powwow500 on Mon Mar 23, 2009 at 02:38:19 PM PDT

  •  The Downside of (3+ / 0-)

    "No prescription" access is one that I don't think advocates realized.  I certainly didn't know about it until it happened.

    My college age daughter needed Plan B recently.  So she went to the doctor, who told her to just pick it up at the pharmacy (she's 18.)  She did - and then had to pay $70 out of pocket which she did not have and had to borrow from me (thus having to tell me why she needed the money - no problems in our family, but potentially huge problems in someone else's).  

    Because its status as an over-the-counter drug meant that the cost of Plan B is not covered by most health/prescription insurance.  It is covered by insurance ONLY for girls under the age of 18, who of course cannot have it without a doctor's prescription.

    So I am of mixed mind when it comes to whether Plan B should, or should not, be available without a prescription, solely because right now insurance is not compelled to pay for anything that isn't a prescription drug.  For middle class women $70 may not seem like much money.  But for poor women who don't have mothers, like my daugther, that money may be an insurmountable obstacle to avoiding a pregnancy despite one's best efforts.  

  •  What is it that makes 17 the new magic (0+ / 0-)

    number? Why not 16? Or 15?

    Is there an explanation for having an age limit at all? The reasons EC may be needed do not discriminate on the basis of age.

    "You can safely assume that you've created God in your own image when it turns out that God hates all the same people you do." Anne Lamott

    by MsWings on Mon Mar 23, 2009 at 03:04:41 PM PDT

    •  I suppose (0+ / 0-)

      that it is the same thing that makes 17 the age for NC-17 and R ratings in the movies... not that it makes much sense!

      Obama: the change we needed.

      by DreamyAJ on Mon Mar 23, 2009 at 03:30:21 PM PDT

      [ Parent ]

    •  To answer MsWing’s question (0+ / 0-)

      about the magical age of 17.  As the court explains, the sole justification for the age restriction was that there was no adequate data to support use by women 16 and younger.  But there was good data supporting safe use by 17 year olds.  So the court felt comfortable saying there’s no need to kick it back to the FDA on the 17 year old question – it’s obvious they should get non-prescription access.  The court felt it best to leave it to the expertise of the FDA as to whether the drug can be used safely by those younger than 17.

  •  Edited to Add (0+ / 0-)

    Refusals are a real problem for women, not just for EC, but also for regular birth control and other kinds of reproductive health care services.  It’s an issue that we’ve been working on at the National Women’s Law Center (see  If you feel strongly about this issue, take action – send in a comment supporting the Obama Administration’s proposal to get rid of the Bush Administration rule that allows health care providers to refuse to provide services, information, or referrals in all kinds of circumstances.  You can more information and sample comments here:

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