Last month, federal judge Edward Korman held that the Obama administration's override of the FDA's recommendation for over-the-counter emergency contraception was illegal. The "compromise" of making Plan B available without a prescription only to women over 17, Korman persuasively argued, was "arbitrary and capricious" and hence exceeded the power of the secretary of health and human services. Yesterday, the Obama administration responded by modifying the policy. The new policy is better, but still not nearly good enough and still not in compliance with the requirements of Korman's decision.
Under the new policy, Plan B would be made—at least on paper—available over-the-counter to all women aged 15 or over. Making emergency contraception available to the vast majority of women who might become pregnant is certainly an improvement compared to five years ago. But the age limit—even if lower—remains completely irrational. There is no scientific evidence that emergency contraception is unsafe for women of any age; lowering the age at which emergency contraception can be obtained without a prescription doesn't address the core problems with the initial override of the FDA's experts. Restricting access for those under 15 is not merely pointless but perverse. Carrying a child to term is less safe for women under 15 than it is for women between the ages of 15 and 17, and women under 15 are obviously much less likely to be emotionally and financially ready for motherhood. As age decreases, the need to prevent unwanted pregnancies becomes more compelling, not less.
Nor will the effects of the new rule necessarily be confined to women under 15. As Jodi Jacobson of RH Reality Check notes, the decision creates a "significant barrier" not only for "low-income teens under 15 years of age" but for "those without ID who “look” younger and are denied access." Not all young women aged 16 and 17 have driver's licenses or passports, and pharmacists are required by the new policy to ask for ID. Even pharmacists attempting to comply with the rules in good faith may be required to deny over-the-counter access to women who are eligible under the policy, and maintaining an age limit gives an additional pretext to pharmacists who seek to impose their own moral values on women seeking emergency contraception. A bright-line rule eliminating age limitations on over-the-counter access is important not only to young women over 15 but to those under 15 as well.
Judge Korman summed up his analysis last month by noting that "the Secretary’s action was politically motivated, scientifically unjustified, and contrary to agency precedent." The FDA's response to the decision retains the same defects. It should just comply with the court order and act in the interests of all women, rather than coming up with further evasions that are indefensible on the merits and don't even provide any discernible political benefit.