New FDA Restrictions on Morning-After Pill Are … Still Restrictive

UPDATE: The U.S. Justice Department announced today that it will appeal U.S. District Court Judge Edward Korman’s decision to make emergency contraception available to all ages without restrictions, and asked for a stay of his ruling. The implication is that the DOJ supports the FDA ruling that’s explained below.

After U.S. District Judge Edward Korman ruled in early April that the morning-after pill should be made available over-the-counter to all ages, the Food and Drug Administration decided Tuesday only to lessen restrictions.

The emergency contraceptive known as Plan B One-Step will be available over the counter to those 15 years old or older, and will be sold only to those who can prove their age through valid photo ID. (For those under 16 without driver’s licenses, that means bringing a passport or obtaining a non-driver’s ID from the Department of Motor Vehicles).

Korman’s decision gave the FDA 30 days from April 5 to make emergency contraception available over the counter to all ages. Nancy Northup, president of the Center for Reproductive Rights, thinks the FDA’s new regulations are not sufficient:

The FDA is under a federal court order that makes it crystal clear that emergency contraception must be made available over the counter, without restriction, to women of all ages by next Monday.

Emergency contraceptives have been the topic of an ongoing back-and-forth debate for years. Late in 2011, Health and Human Services Secretary Kathleen Sebelius overruled the FDA’s recommendation to make emergency contraceptives available over the counter to all ages. President Obama announced that he backed Sebelius’ decision, saying,

And as I understand it, the reason Kathleen made this decision was she could not be confident that a 10-year-old or an 11-year-old going into a drugstore should be able—alongside bubble gum or batteries—be able to buy a medication that potentially, if not used properly, could end up having an adverse effect. And I think most parents would probably feel the same way.

Because obviously a 10-year-old’s favorite after-school activity is going to the drugstore to pick up batteries, bubble gum and emergency contraceptives.

Because Plan B One-Step’s new over-the-counter status means it’ll be sold in stores during normal retail hours and there will be no more anxiously waiting until the pharmacy department opens. But the truth is (parents, cover your ears), there are also kids under 15 who have, and will have, sex—whether they have access to contraception or not. Lowering the minimum age to buy emergency contraceptives to 15 is still restrictive—just a little less so.

And the newest FDA proposal still excludes the 11 percent of those in the U.S. (9 percent of whites, 16 percent of Latino Americans and 25 percent of African Americans) who don’t have government-issued photo IDs.

Kristen Glundberg-Prossor, spokesperson for Planned Parenthood of the Great Northwest, says that, in the past, age restrictions on emergency contraceptives have been confusing to some pharmacists. She believes this confusion could prevent some girls and women—especially those in rural areas—from getting EC in a timely manner. Nonetheless, she says,

It’s a good first step, it removes some barriers for women. We still believe, [however], consistent with the prevailing science around the drug, that there should be no age restriction. There is no age restriction on condoms.

The ball is now in the court of U.S. Department of Justice officials, who must decide whether to appeal Korman’s ruling before the 30-day deadline ends this coming Monday.

Photo courtesy of Flickr user °Florian under Creative Commons 2.0


Ponta Abadi, a graduate of the University of Oregon, is a former Ms. intern. Follow her on Twitter.