A Lawsuit in Federal Court Seeks to Lift the Obama Administration’s Emergency Contraception Decision

A federal district court in New York is considering “whether to force the federal government to lift the age restrictions on over-the-counter sale of emergency contraceptives.” This lawsuit, brought by the Center for Reproductive Rights, alleges that the Food and Drug Administration (FDA) has denied women of all ages access to over-the-counter emergency contraception and has failed to follow procedural, statutory, and regulatory mandates in violation of the United States Constitution and the Administrative Procedure Act.  The plaintiffs originally filed this action in 2005, and re-opened the case in 2012, after Health and Human Services (HHS) Secretary Kathleen Sebelius made the unprecedented decision to overrule the FDA’s judgment to lift the age restriction on over-the-counter access to emergency contraception (Plan B).

We have blogged before  about the age restriction on emergency contraception access and why it is unwise to have such a restriction. In a letter sent to President Obama and Secretary Sebelius, WLP noted that

when our country faces approximately 3.1 million unintended pregnancies each year, unrestricted access to safe and effective contraception is vital…[and] also…there is simply no evidence to suggest that making emergency over-the-counter contraception available encourages young women to begin having sex at a younger age, or engage in sex with more partners.

According to Politico, Judge Korman “seems to be losing his patience with what he sees as the government’s disregard of scientific evidence saying the drug should be available over the counter. ‘Understand — the FDA has made a scientific judgment here,’ Korman told the government’s lawyer.”

But even if Judge Korman does decide to overrule the age restriction on emergency contraception, the government has argued that Korman does not actually have the power to make such a decision. However, the Center for Reproductive Rights (CRR) noted that Korman has already established a precedent for lowering the age limit on access to emergency contraception when he ordered the age restriction be lowered from 18 to 17 in 2009.

The current lawsuit seeks to remove a barrier to young women’s access to emergency contraception by making it available without a prescription, which takes time for women to procure and may cost money for the appointment.  In Through the Lens of Equality: Eliminating Sex Bias to Improve the Health of Pennsylvania’s Women, WLP discusses many of the barriers that impede women’s access to basic reproductive health care, including legal restrictions, high cost, misinformation, and violence and harassment against patients and providers.  These barriers have a deleterious effect on women’s health by, for example, increasing the likelihood of unintended pregnancies, which are correlated with a wide range of negative health outcomes for women and children.  Removing the age restriction on over-the-counter access to emergency contraception would improve the health and welfare of young women throughout the country.

About womenslawproject

The Women's Law Project creates a more just and equitable society by advancing the rights and status of all women throughout their lives. To this end, we engage in high-impact litigation, advocacy, and education.
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