Obama didn’t change his mind on Plan B, Justice changed its legal strategy

June 11, 2013

President Obama still opposes over-the-counter access to emergency contraceptives for women and girls of all ages. (Washington Post)

The Obama administration announced Monday it would no longer defend age limits on over-the-counter access to emergency contraceptives. That does not, however, mean that President Obama has reversed his position on the issue.

As Brady Dennis and I report in today's paper, the president still opposes allowing girls as young as 12 access to pills like Plan B One-Step without a prescription. So why did his administration drop its bid to enforce age limits?

I had the chance to talk this through late Monday night with a senior administration official, who spoke on the condition of anonymity to describe the legal reasoning.

It starts with a decision that the United States Court of Appeals for the Second Circuit issued last week. In that ruling, a three-judge panel considered the administration's request to temporarily hold off on allowing over-the-counter sales of emergency contraceptives to women of all ages, as federal judge Edward Korman had ordered on April 5.

The Department of Justice wanted to stay that ruling until the appeals court issued a ruling on the merits of its challenge.


Korman had ordered that two emergency contraceptives, Plan B and Plan B One-Step, be made available without prescription to all women and girls. The appeals court partially sided with the administration: It issued a stay for Plan B One-Step because of jurisdictional issues. The case that Korman initially heard dealt only with the two-pill product, not Plan B One-Step, which could put the one-pill product outside the scope of that particular case.

On the two-pill Plan B product, however, the three-judge panel refused the administration's request for a stay. It would not allow its move to over-the-counter to be delayed.

That meant two things. First, it was a signal that Justice would likely lose its appeal. Stays are typically granted when the appeals court sees a good chance for the challenger to ultimately prevail. In this case, the Second Circuit did not see that.

Second, the ruling meant that the two-pill Plan B product now had to move in front of the counter. According to the senior official, there was worry about the two-pill product proving too complex for young girls to use it properly. The newer Plan B One-Step, which contains a one-pill dosage of levonorgesterl, is easier to use, which the administration thought made it a safer over-the-counter product.

A federal judge had ordered the FDA to allow an emergency contraceptive to be sold over-the-counter and the odds didn't look good in moving forward with the challenge. The administration, according to this official, felt like it had two not so great options.

It could continue its a relatively long-shot legal challenge while allowing a possibly complex medication to land on pharmacy shelves. Or, recognizing the long odds, it could drop the challenge and allow a simpler version of the product to become available to women and girls of all ages, without a prescription.

In the administration's best-case scenario, it would have won the stays and ultimately prevailed on appeal. That didn't happen. The Department of Justice fell back on what the administration saw as the better of two undesirable options. That's what you saw happen Monday, when Justice announced its intention to drop its appeals.

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Evan Soltas | June 11, 2013