The President's Morning After

Getty Images/Joe Raedle

Last Friday, Judge Edward Korman ruled that the federal government must abide by U.S. Food and Drug Administration (FDA) recommendations and make emergency contraception available over the counter without age restrictions. Cue the freak-out about girls having unprotected orgies followed by Plan B snorting parties.

Emergency contraception, often referred to as “the morning-after pill,” or by its brand name, Plan B, is designed to be taken in, well, emergencies—the condom breaks, you got carried away in the moment and didn’t ever quite get to the birth control, or in cases of sexual assault or coercion in which the victim doesn’t have much choice about contraception. 

Plan B was first approved by the FDA for prescription use in 1999. But the prescription requirement is onerous for several reasons, not the least of which is that the later emergency contraception is taken, the less effective it is; it loses any reasonable odds of working after about three days. This means the time it takes for a prescription to be issued and filled directly increases the user’s odds of an unwanted pregnancy. The prescription requirement is also a barrier for users who don’t have health insurance, can’t afford the co-pay required to see the doctor, or can’t easily get to the doctor’s office. Even many users with medical access continue to be blocked by doctors and pharmacists who refuse to dispense the drug for “moral” reasons.

That’s why the Center for Reproductive Rights (CRR) filed a 2001 petition to have emergency contraception made available without a prescription. Even then, scientists at the FDA were happy to endorse over-the-counter use. But the higher-ups in George W. Bush’s FDA rejected the application anyhow, with some former officials later saying that they had feared for their jobs if they decided otherwise. 

What’s followed has been over a decade of feminist activism, legal wrangling, and bipartisan government obstructionism. Groups like National Women’s Liberation have been advocating for full access to Plan B for years, first testifying to the FDA and publishing position papers, then escalating to sit-ins at the FDA office, pharmacy flashmobs, and street theater in front of Health and Human Services. They even illegally distributed prescription-free emergency contraception as a form of civil disobedience. Meanwhile, CRR brought a lawsuit against the federal government in 2005 (involving plaintiffs affiliated with National Women’s Liberation as well as scientists, public-health organizations, and parents), suing for full over-the-counter access for users of all ages. In 2006, the FDA partially complied, approving emergency contraception without a prescription for users 18 and older, even though there was no scientific basis for withholding it from younger users, and the ruling meant that even older patients would still be left to the whim of both limited pharmacy hours and moralizing pharmacists. 

In 2009, a federal court ruled that prescription-free access be extended to 17-year-olds, and slammed the FDA for limiting access to teenagers based on politics instead of science. The court also ordered the FDA to reconsider CRR’s original petition for unrestricted over-the-counter access. When the FDA dragged its feet on both the access for 17-year-olds and the petition, CRR filed a November 2010 motion for contempt against the FDA for continually failing to follow the court’s orders. Soon after, Plan B’s manufacturer filed a new application for unfettered prescription-free access, an application scientists at the FDA wholeheartedly endorsed in 2011, but which was blocked by Obama’s Health and Human Services Secretary Kathleen Sebelius, citing “insufficient evidence.” One week later, Obama’s FDA rejected the CRR’s reconsidered petition. 

Exhausted just reading about it? Then you can imagine how the activists, scientists, and lawyers who’ve fought this battle for so long must feel. This new ruling is an enormous victory for them and for us, and a testament to their tenacious efforts. 

In his ruling, Judge Korman pulled no punches, calling Sebelius’s intervention “politically motivated, scientifically unjustified, and contrary to agency precedent,” once again highlighting the ongoing, unprecedented, and unsupported politicization of settled science in the case of Plan B. Unfortunately, Korman’s ruling has also reignited the moral panic that always accompanies discussion of female sexual agency—and make no mistake, that's what's at stake here. The idea that women—even teen girls—can control their own fertility and have sex "without consequences" drives a vocal minority of the country’s citizens over the edge. 

They couch it, of course, in “concern” for girls: Emergency contraception causes abortion! (It doesn’t.) Young teens and tweens won’t be capable of correctly using the drug! (Should we be locking up the Benadryl, too? It’s much easier—not to mention more tempting—to abuse than Plan B, which is safer to take than aspirin.) If teens aren’t forced to talk with a medical professional, where will they get the information they may need about better birth-control options and preventing STD transmission? (These are the same folks who block comprehensive, fact-based sex ed in public schools.) Without the required intervention of a family doctor, teens will be exploited by older men who will convince them to have unprotected sex and then convince them to repeatedly abuse emergency contraception! (No word from these quarters about the potential of Plan B to empower these girls to resist coerced pregnancies, a documented phenomenon too common in abusive relationships.) 

If only we could know in advance the risks that come with providing Plan B over the counter—oh, wait, we can! This isn't some grand experiment we'll be conducting on the youth of America. Emergency contraception is already available without a prescription (or age limits) in dozens of countries, including Canada, Egypt, and the U.K. We already know what impact it has on young people's sexual activity: zilch. It doesn’t encourage unprotected sex or other sexual risk-taking. It doesn’t increase abuse of emergency contraception or discourage use of more reliable birth-control methods. It doesn’t increase sexual activity in any way. Anyone who tells you otherwise is lying in service of an agenda. We already know all these answers. 

Of course, it’s not just a radical-right fringe doing the pearl clutching. When Secretary Sebelius rejected the FDA’s recommendation in 2011, the president let drop this paternalistic gem in support: “As a 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.” And it’s Obama who now has to decide whether to appeal this ruling, or to allow Plan B to be finally shelved where it belongs: next to the condoms and lube, where women and girls can access the care they need without having to submit themselves to the moral judgment of a doctor or pharmacist.

Memo to Obama: “Common sense” says that the government has no public-health interest in shaming sexually active girls or in increasing the odds they’ll become unintentionally pregnant. Quite the contrary: The Supreme Court found in 1977 that teens have a right to privacy, and that the right includes access to contraception, and that states can’t use “moral” arguments to obstruct that right.

Don't want your kids to use Plan B without your knowledge? Then do the hard work of parenting and build the kind of relationship with your kids that will let them know they can have frank and open conversations with you about sex. Let your daughters know that their "purity" is less important to you than their health and happiness. Instead of teaching them that sex is bad and wrong until a man turns you into a wife, equip your children to make positive sexual decisions on their own terms.

There’s nothing wrong with female sexual desire. Women and teen girls don’t need to be deterred from sex by the threat of “consequences” like unwanted pregnancy. But making policy based on the assumption that female sexuality has to be controlled or suppressed puts you squarely on the side of shaming, and sexual shame does have public-health consequences: It makes girls and women more vulnerable to coercion and abuse, it impairs our ability to do things like negotiate condom use, and it makes it harder for us to pursue a sexual life that’s fulfilling for us, not just our partners. If Obama has any common sense at all, he’ll make the country safer for everyone’s daughters by allowing Judge Korman’s ruling to stand.

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