The Post’s View

The legal mess on emergency contraception

WHEN U.S. District Judge Edward Korman ruled last month that the government had to allow unrestricted, over-the-counter access to the emergency contraceptive Plan B, it seemed as though the Obama administration had stumbled its way out of a political quandary. Scientists say that the drug is safe for over-the-counter sale; in fact, the judge noted, it would be among the safest of over-the-counter drugs. But many parents — President Obama included, by his own account — are queasy about children being allowed to buy emergency contraceptives without oversight. The court forced the government to act on evidence, not queasiness.

Or maybe not. On Tuesday, the Food and Drug Administration (FDA) announced that the latest version of Plan B will still be subject to age restrictions. Girls younger than 15 will have to get a prescription to buy a one-pill dose of the drug. This is contrary to the spirit of Judge Korman’s decision, even if the FDA can argue that it follows the letter of the law, since his ruling applies only to an earlier, two-dose version of the drug. On Wednesday, the Justice Department gave notice that it would appeal the judge’s decision, an effort that could make the FDA’s 15-year-old age limit the least restrictive rule on the books for any form of emergency contraception.

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The Obama administration’s previous rules barred over-the-counter sales of any version of Plan B to anyone younger than 17. Despite evidence of the drug’s safety, concern over making it available to 11- or 12-year-old girls — almost none of whom are sexually active — was the pretext to deny access to older teenagers, nearly half of whom have sex by age 17. Lowering the minimum age to 15 is an improvement.

But it still leaves the FDA with a position inconsistent with the judgment of its scientific experts, who recommended unrestricted access. The Obama administration’s unprecedented decision to override those experts, Judge Korman wrote, was “arbitrary, capricious, and unreasonable.”

We don’t mean to belittle Mr. Obama’s queasiness or the concerns of other parents. If Congress and the president want to consider whether the sale of emergency contraceptives to young teenagers has unique moral implications that demand special government restrictions, they should have that debate.

Some have suggested, though without evidence, that the availability of contraception used after sexual intercourse might encourage girls to have unprotected sex or might subject them to pressure to do so. We think the greater danger lies in discouraging desperate teens from using this safe contraception. Balancing those dangers is Congress’s job — not the FDA’s.

 
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