Court Orders Increased Minor Access to Plan B

Special Report - March 25, 2009
A federal judge in New York has ordered the U.S. Food and Drug Administration (FDA) to reconsider its August 2006 decision limiting non-prescription access to the emergency contraception (EC) drug, Plan B, to individuals aged 18 or older. U.S. District Judge Edward Korman, who issued the controversial ruling on March 23, also ordered the FDA to allow Plan B’s maker—Barr Pharmaceuticals—to make EC available to 17-year-olds without a prescription within 30 days of his decision. EC is a form of birth control that can reduce the risk of pregnancy after sexual intercourse has occurred, such as through the use of higher doses of birth control pills. Plan B is the market name of the only EC product approved by the FDA for use in the U.S and works in one of three ways: to prevent ovulation, to prevent fertilization, or to prevent implantation. In August 2006, the FDA made Plan B available to adults (age 18 or older) without a prescription but only behind the pharmacy counter. Minors still need a doctor’s prescription to obtain the drug.

The lawsuit against the FDA was brought by the pro-abortion Center for Reproductive Rights, which claimed that the FDA’s decision-making process in the Plan B case was politically motivated and unfair. In his 52-page ruling, Judge Korman agreed with the plaintiffs, describing the FDA’s three-year consideration of nonprescription access to Plan B as “arbitrary” and “capricious.” He noted that since that decision, “the circumstances have changed,” and a new FDA commissioner and deputy commissioner have been nominated by the newly-elected president. “This change in the leadership suggests that, in plaintiffs’ words, it can be ‘trusted to conduct a fair assessment of the scientific evidence,’” he wrote. Judge Korman ordered the FDA to reconsider “whether to approve Plan B for over-the-counter access without age or point-of-sale restrictions,” and to make it available to 17 year-old girls by April 21, 2009.

“This ruling by a federal judge in New York is a severe blow to the health and safety of young women in this country,” said Matt Lytle, director of research for the North Carolina Family Policy Council. “The fact that EC sometimes works as an abortifacient should be cause for caution in its use and promotion, especially among minors. Other drug-based contraceptives require a prescription for all women, even those over 18. The fact that a drug-based contraceptive and potential abortifacient is available over-the-counter is highly concerning.”

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