Nanny State

Obama Administration Reluctantly Acquiesces to Over-the-Counter Emergency Contraceptive Plan B


Plan B
Credit: Princeton

Yesterday, the Obama Justice Department dropped its lawsuit aiming to prevent the sale without a prescription or I.D. of the emergency contraceptive Plan B to all girls and women of reproductive age. Recall that back 2011, the Food and Drug Administration had found the drug safe for all women to use, but was overruled by Health and Human Services Department Secretary Kathleen Sibelius who ordered that the drug be made available to females under the age of 17 by prescription only. In this case, scientific evidence for safety was trumped by the desires of a politician seeking re-election not to annoy part of the electorate who (needlessly) feared that over-the-counter Plan B might encourage teenagers to have sex.

In the course of this legal rigamarole, the Federal Appeals Court for the Second Circuit ordered (based on legal technicalities) that only the two-pill version of the contraceptive be made available for over-the-counter sale. As the Washington Post reports:

On the two-pill Plan B product, however, the three-judge panel refused the administration's request for a stay. It would not allow its move to over-the-counter to be delayed.

That meant two things. First, it was a signal that Justice would likely lose its appeal. Stays are typically granted when the appeals court sees a good chance for the challenger to ultimately prevail. In this case, the Second Circuit did not see that.

Second, the ruling meant that the two-pill Plan B product now had to move in front of the counter. According to the senior official, there was worry about the two-pill product proving too complex for young girls to use it properly. The newer Plan B One-Step, which contains a one-pill dosage of levonorgesterl, is easier to use, which the administration thought made it a safer over-the-counter product.

A federal judge had ordered the FDA to allow an emergency contraceptive to be sold over-the-counter and the odds didn't look good in moving forward with the challenge. The administration, according to this official, felt like it had two not so great options.

Thus did the Justice Department finally cave. So much for President Obama's promise in his first inaugural address: "We will restore science to its rightful place." Right behind political considerations.