The President's Morning After

Getty Images/Joe Raedle

Last Friday, Judge Edward Korman ruled that the federal government must abide by U.S. Food and Drug Administration (FDA) recommendations and make emergency contraception available over the counter without age restrictions. Cue the freak-out about girls having unprotected orgies followed by Plan B snorting parties.

Emergency contraception, often referred to as “the morning-after pill,” or by its brand name, Plan B, is designed to be taken in, well, emergencies—the condom breaks, you got carried away in the moment and didn’t ever quite get to the birth control, or in cases of sexual assault or coercion in which the victim doesn’t have much choice about contraception. 

Plan B was first approved by the FDA for prescription use in 1999. But the prescription requirement is onerous for several reasons, not the least of which is that the later emergency contraception is taken, the less effective it is; it loses any reasonable odds of working after about three days. This means the time it takes for a prescription to be issued and filled directly increases the user’s odds of an unwanted pregnancy. The prescription requirement is also a barrier for users who don’t have health insurance, can’t afford the co-pay required to see the doctor, or can’t easily get to the doctor’s office. Even many users with medical access continue to be blocked by doctors and pharmacists who refuse to dispense the drug for “moral” reasons.

That’s why the Center for Reproductive Rights (CRR) filed a 2001 petition to have emergency contraception made available without a prescription. Even then, scientists at the FDA were happy to endorse over-the-counter use. But the higher-ups in George W. Bush’s FDA rejected the application anyhow, with some former officials later saying that they had feared for their jobs if they decided otherwise. 

What’s followed has been over a decade of feminist activism, legal wrangling, and bipartisan government obstructionism. Groups like National Women’s Liberation have been advocating for full access to Plan B for years, first testifying to the FDA and publishing position papers, then escalating to sit-ins at the FDA office, pharmacy flashmobs, and street theater in front of Health and Human Services. They even illegally distributed prescription-free emergency contraception as a form of civil disobedience. Meanwhile, CRR brought a lawsuit against the federal government in 2005 (involving plaintiffs affiliated with National Women’s Liberation as well as scientists, public-health organizations, and parents), suing for full over-the-counter access for users of all ages. In 2006, the FDA partially complied, approving emergency contraception without a prescription for users 18 and older, even though there was no scientific basis for withholding it from younger users, and the ruling meant that even older patients would still be left to the whim of both limited pharmacy hours and moralizing pharmacists. 

In 2009, a federal court ruled that prescription-free access be extended to 17-year-olds, and slammed the FDA for limiting access to teenagers based on politics instead of science. The court also ordered the FDA to reconsider CRR’s original petition for unrestricted over-the-counter access. When the FDA dragged its feet on both the access for 17-year-olds and the petition, CRR filed a November 2010 motion for contempt against the FDA for continually failing to follow the court’s orders. Soon after, Plan B’s manufacturer filed a new application for unfettered prescription-free access, an application scientists at the FDA wholeheartedly endorsed in 2011, but which was blocked by Obama’s Health and Human Services Secretary Kathleen Sebelius, citing “insufficient evidence.” One week later, Obama’s FDA rejected the CRR’s reconsidered petition. 

Exhausted just reading about it? 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. 

In his ruling, Judge Korman pulled no punches, calling Sebelius’s intervention “politically motivated, scientifically unjustified, and contrary to agency precedent,” once again highlighting the ongoing, unprecedented, and unsupported politicization of settled science in the case of Plan B. Unfortunately, Korman’s ruling has also reignited the moral panic that always accompanies discussion of female sexual agency—and make no mistake, that's what's at stake here. The idea that women—even teen girls—can control their own fertility and have sex "without consequences" drives a vocal minority of the country’s citizens over the edge. 

They couch it, of course, in “concern” for girls: Emergency contraception causes abortion! (It doesn’t.) Young teens and tweens won’t be capable of correctly using the drug! (Should we be locking up the Benadryl, too? It’s much easier—not to mention more tempting—to abuse than Plan B, which is safer to take than aspirin.) If teens aren’t forced to talk with a medical professional, where will they get the information they may need about better birth-control options and preventing STD transmission? (These are the same folks who block comprehensive, fact-based sex ed in public schools.) Without the required intervention of a family doctor, teens will be exploited by older men who will convince them to have unprotected sex and then convince them to repeatedly abuse emergency contraception! (No word from these quarters about the potential of Plan B to empower these girls to resist coerced pregnancies, a documented phenomenon too common in abusive relationships.) 

If only we could know in advance the risks that come with providing Plan B over the counter—oh, wait, we can! This isn't some grand experiment we'll be conducting on the youth of America. Emergency contraception is already available without a prescription (or age limits) in dozens of countries, including Canada, Egypt, and the U.K. We already know what impact it has on young people's sexual activity: zilch. It doesn’t encourage unprotected sex or other sexual risk-taking. It doesn’t increase abuse of emergency contraception or discourage use of more reliable birth-control methods. It doesn’t increase sexual activity in any way. Anyone who tells you otherwise is lying in service of an agenda. We already know all these answers. 

Of course, it’s not just a radical-right fringe doing the pearl clutching. When Secretary Sebelius rejected the FDA’s recommendation in 2011, the president let drop this paternalistic gem in support: “As a father of two daughters … I think it is important for us to make sure that we apply some common sense to various rules when it comes to over-the-counter medicine.” And it’s Obama who now has to decide whether to appeal this ruling, or to allow Plan B to be finally shelved where it belongs: next to the condoms and lube, where women and girls can access the care they need without having to submit themselves to the moral judgment of a doctor or pharmacist.

Memo to Obama: “Common sense” says that the government has no public-health interest in shaming sexually active girls or in increasing the odds they’ll become unintentionally pregnant. Quite the contrary: The Supreme Court found in 1977 that teens have a right to privacy, and that the right includes access to contraception, and that states can’t use “moral” arguments to obstruct that right.

Don't want your kids to use Plan B without your knowledge? Then do the hard work of parenting and build the kind of relationship with your kids that will let them know they can have frank and open conversations with you about sex. Let your daughters know that their "purity" is less important to you than their health and happiness. Instead of teaching them that sex is bad and wrong until a man turns you into a wife, equip your children to make positive sexual decisions on their own terms.

There’s nothing wrong with female sexual desire. Women and teen girls don’t need to be deterred from sex by the threat of “consequences” like unwanted pregnancy. But making policy based on the assumption that female sexuality has to be controlled or suppressed puts you squarely on the side of shaming, and sexual shame does have public-health consequences: It makes girls and women more vulnerable to coercion and abuse, it impairs our ability to do things like negotiate condom use, and it makes it harder for us to pursue a sexual life that’s fulfilling for us, not just our partners. If Obama has any common sense at all, he’ll make the country safer for everyone’s daughters by allowing Judge Korman’s ruling to stand.


Great article, thank you!

Hi Jaclyn, just a couple quick points. Well, not very quick, but you and others will hopefully find this worth reading.

1) It seems nearly every “progressive” critique of the administration’s inaction on Plan B has been to say Obama this, Obama that, Obama the other…and no comment on how likely we’d have seen anything different had Hillary Clinton been won the Democratic nomination some years back and had been elected.

But it appears likely we’d be in the SAME position if Hillary had been president. Really. Try doing some searches for “Hillary” and “a sad, even tragic choice” and read some articles from back around 2005 or so. Or try to make sense of Sen Kerry’s statement, “abortion should be the rarest thing in the world.”

Really? The "rarest thing in the world?" Less common, perhaps than what, heart transplants? And that from Senator Kerry, the 2004 Democratic candidate whose campaign who many said wasn’t friendly enough to religious moderates – at least that was said after they lost the 2004 election. Sure, emergency contraception isn't abortion. But we may as well say we're demanding free teen abortion on demand and without apology as we'd say we support making Plan B available over-the-counter without age restrictions, as far as expecting support from the Obama administration is concerned, and it's not likely that any other Democratic administration would have done much more. We think we should see the term "a sad, even tragic choice" in the context of supporting candidates who give equivocal support for minor's access to contraception and abortion, but that'd be our choice.

While we're at it we might ask why more wasn't done in the last years of the administration of Bill Clinton in spurring the development of formulations like PREVEN, a emergency contraception formulation that worked very well (though with estrogen caused more nausea than Plan B does) -- but politically some might have felt that it was a good thing that didn't happen, or else his administration might have had to deal with the idea, openly supported in the medical community, that formulations like PREVEN should be made available over-the-counter to all ages.

See also the use of the term “common ground” which was another phrase popular especially with some prochoice activists in the Democratic party for a few years. After Obama’s election, some tried to use the term “common ground” to keep the dialogue going, especially after the assassination of Dr. Tiller in 2009, but the term “common ground” didn't gain much traction among many working full-time to advance access to stuff like contraception and abortion to young and poor people because, duh, we just aren't likely going to find much “common ground” with many people who would define themselves as “pro-life” at least in the ways the term is most commonly used to self-describe one’s points of view on the issues.

Maybe non-activists and people who have no idea of history of the prochoice movement would be surprised that Obama has continued the same sort of common ground appeasement of antis and a mushy middle – including moderate activists in prochoice groups -- that simply don’t care very much about minor’s access to contraception. But people with a good understanding of history of the movement and the political forces involved shouldn't have felt blindsided or betrayed when that happened.

Note the term “minor’s access” – you won’t find that term or synonyms much in public discussions of reproductive law and policy, certainly not in much that has come from even prochoice activist groups in the last decade or a little more. There has been admirable work by some groups supporting insurance coverage of various kinds of contraception, of IUDs and pills and whatever, but how many minors have medical insurance independent of their parents, which in practice they might well have to have to be able to get contraceptive coverage and be sure they are free of parental interference in their choices? But no, actually there’s been no talk in a sense of engaging pro-choice activists about those concerns which minors would likely have very high on their agenda. There certainly wasn't much grassroots engagement in anticipation of any kind of Obama administration inaction or resistance to making EC like Plan B available over the counter to all ages.

2) You mentioned “National Women’s Liberation” which deserves more much credit than it's gotten for some very creative street actions and participation in the cases that Judge Korman ruled favorably on. You could also mention the Center for Reproductive Rights (CRR), an awesome law firm that does vanguard advocacy of many prochoice concerns and was the main legal group behind the case. But one would be hard-pressed to name any other prominent national prochoice groups who were very involved. And it appears that there was hardly anyone, anywhere else who was involved in trying to file similar lawsuits or be involved in similar efforts with the FDA, for that matter. There are some groups who focus on emergency contraception, like Reproductive Health Technologies Project and Ibis Reproductive Health, but hardly anyone outside of the professional community knows those groups exist.

National Women’s Liberation and CRR deserve credit for being the movement and legal activists behind the ruling, and groups like RHTP and Ibis have been activists in the sense of seriously studying these policies for years, but the real stars and power driving the case that Korman has been the work of professional organizations like the American Academy of Pediatrics, American College of Obstetricians and Gynecologists, American Public Health Association, all of which are the kind of traditional professional medical groups (and there are many other smaller groups that could be named here), groups little different from the ones who were behind the reform of abortion law in the 1960s and even 1950s and earlier, long before Roe v Wade.

In fact, the Korman ruling could be compared in some ways to Roe v Wade in that professional groups played a vastly bigger role than feminist-focused groups did, and will have to play a much bigger role if the ruling is really going to make much difference, as Linda Greenhouse and Reva Siegel recently were quoted in a different context as stating:

‘Roe V. Wade’ Turns 40, But Abortion Debate Is Even Older
Tuesday, January 22, 2013
Julie Rovner / NPR

“In both a recent book, Before Roe v. Wade, and the Yale Law Journal article "Before (and After) Roe v. Wade: New Questions About Backlash," the authors suggest that factors other than the court decision may have had much more to do with the state of today's debate.

One important thing most people don't realize, says Greenhouse, is that the move to relax state abortion laws came not from women's rights groups but from the medical profession and a prominent apolitical group of judges and lawyers called the American Law Institute.”

Just like it was before and after Roe, we ought to be looking at forces like that today and how activists could play a role at the federal and state level to get the best ideas about where one could focus one’s efforts if one really believes that is important that minors have access to contraception like Plan B, or comprehensive reproductive health care at all, especially in conservative states and communities like those in our backyard.

If one really believes that is important, that is.

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