The Obama administration on Monday abandoned its fight to keep age restrictions on sales of a widely used morning-after contraceptive pill, a stark legal reversal that ended years of court battles but did little to extinguish political passions on both sides of the issue.
In a letter Monday to U.S. District Judge Edward R. Korman in New York, who has called the age restrictions “politically motivated” and “scientifically unjustified,” the administration said it would drop its appeal in the case and abide by Korman’s order to make Plan B One-Step contraceptive pills available to women and girls of any age without a prescription.
President Obama has not changed his position and still opposes over-the-counter access to emergency contraceptives for young girls, said a senior administration official who spoke on the condition of anonymity Monday to describe the White House’s reasoning. But the Justice Department decided to drop the case after multiple setbacks in federal courts in recent months.
Advocates for birth control cheered Monday’s decision as a victory for women’s rights and a boon to public health.
“This is a huge breakthrough for access to birth control and a historic moment for women’s health and equity,” Cecile Richards, president of the Planned Parenthood Federation of America, said in a statement Monday, adding that the decision “will make emergency contraception available on store shelves, just like condoms, and women of all ages will be able to get it quickly in order to prevent unintended pregnancy.”
Antiabortion groups criticized the administration’s decision, restating their long-held view that giving young girls access to the contraceptive without requiring the notification of a doctor or parent could lead to reckless behavior.
“Parents all across the country ought to be really, really concerned that we’re seeing the Obama administration completely surrender any principle of defending women’s health to the politics of big abortion,” said Americans United for Life President Charmaine Yoest. “There are so many reasons to maintain some measure of control over the distribution of such a strong drug, particularly to young women. I see this as a really, really terrible development. . . . I just think it’s very troubling and sets a really bad standard.”
The Food and Drug Administration said Monday evening that it had asked the drug’s manufacturer, Teva Branded Pharmaceutical Products, to submit an application to make Plan B One-Step available over the counter without restrictions.
“Once FDA receives that supplemental application, the FDA intends to approve it promptly,” the agency said. Teva Pharmaceuticals declined to comment Monday on the decision and could not say how soon the pill would be available on pharmacy shelves.
Plan B is classified by the FDA as an emergency contraceptive and greatly reduces the chance of pregnancy if taken within 72 hours after intercourse. It differs from abortion drugs such as RU486, which is intended to terminate a pregnancy that already has been established.
The FDA approved Plan B as a prescription emergency contraceptive in 1999. In 2003, its manufacturer asked the FDA to make the drug available over the counter.
In late 2011, Health and Human Services Secretary Kathleen Sebelius shocked women’s health advocates and abortion opponents alike when she overruled the FDA, which had found that the drug could be used safely by women of all ages, and rejected the request to sell Plan B without restrictions on supermarket shelves and in drugstores.
Obama said at the time that he was not involved in Sebelius’s decision but defended her approach, saying that “as the 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.”
Earlier this year, in a blistering 59-page ruling, Korman offered a scathing rebuke of the 2011 decision and ordered that Plan B be made available to women and girls of all ages and no longer be placed behind the counter. The judge also accused the FDA of acting in “bad faith” for failing to act for years on a citizen petition requesting that the drug be available without a prescription and ordered the agency to lift its restrictions within 30 days.
“More than twelve years have passed since the citizen petition was filed and eight years since this lawsuit commenced. The FDA has engaged in intolerable delays,” Korman wrote then.
Last week, the U.S. Court of Appeals for the 2nd Circuit dealt another blow to the Obama administration when it refused to fully delay moving emergency contraceptives over the counter until it ruled on the issue. The three-judge panel granted the White House its requested delay to keep one-pill products, such as Plan B One-Step, restricted to those 15 and older. The court did not allow any age restrictions to remain on two-pill emergency contraceptive products.
When an appeals court refuses to stay a lower court’s ruling, it generally indicates that it does not expect the legal challenge to succeed. The senior administration official said the government recognized it would probably lose its bid to age-restrict emergency contraceptives.
Rather than have the two-pill product available without a prescription, as the appeals court had ordered, the administration preferred to allow the simpler Plan B One-Step to move over the counter.