But Korman said he was willing to hear arguments over whether the agency should have allowed the sale of the morning-after pill to girls younger than 17 without a prescription, and he instructed advocacy groups to file the appropriate legal motions. Korman specifically suggested adding Health and Human Services Secretary Kathleen Sebelius to the lawsuit.
The Center for Reproductive Rights, which is leading the court challenge, said it would comply with the judge’s request.
“This fight is far from over. We intend to take every legal step necessary to hold the FDA and this administration accountable for its extraordinary actions to block women from safe, effective emergency contraception,” said Nancy Northup, the center’s president and chief executive.
When asked about the judge’s decision, FDA spokeswoman Erica Jefferson said, “This matter remains under consideration by Judge Korman, therefore FDA has no comment.”
The legal maneuvering was the latest development in the long, contentious battle over Plan B. The Obama administration stunned many women’s health advocates last week by rejecting a request to allow anyone to buy the newer Plan B One-Step directly off the store shelves without a prescription. Currently, only those 17 and older are able to buy Plan B One-Step or the generic forms of Plan B without a prescription and must show proof of age.
Also on Tuesday, 14 Democratic senators, led by Sen. Patty Murray (D-Wash.), called on Sebelius to explain the rationale behind her decision, which had infuriated many members of Congress and women’s health advocates.
The court challenge involved a petition filed in 2001 and a lawsuit filed in 2005 by the center and more than 60 family-planning and health organizations in response to the initial delays in relaxing restrictions on the original two-pill Plan B.
Plan B contains a higher dose of a synthetic form of the hormone progesterone found in many standard birth-control pills. Taken within 72 hours of unprotected intercourse, the pill has been shown to be 89 percent effective at safely preventing pregnancy. It was approved in 1999 but only for women who had a doctor’s prescription.
Plan B works primarily by preventing an egg from being fertilized. But some critics focus on the chance that it might prevent a very early embryo from implanting in the womb, an action they consider equivalent to an abortion. Conservative lawmakers and advocacy groups also question the drug’s safety and argue that wider availability could encourage sexual activity and make it easier for men to sexually abuse underage girls.
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