Judge Rules That Girls of All Ages Should Have Access to Over-the-Counter Plan B

A judge called out the Obama administration for its "bad faith" restrictions.

A federal judge ruled Friday that women and girls of all ages should have access to over-the-counter morning-after pills, better known as Plan B, defying an earlier Obama administration order that forced girls 16 and younger to obtain a prescription.

Judge Edward Korman also accused Secretary of Health and Human Services Kathleen Sebelius of acting in “bad faith” when she overruled an FDA recommendation to provide all-age access to non-prescription Plan B. Korman said Sebelius exhibited a “strong showing of bad faith and improper political influence.”

“The plaintiffs should not be forced to endure, nor should the agency’s misconduct be rewarded by, an exercise that permits the FDA to engage in further delay and obstruction,” added Korman in his 59-page opinion.

Korman defended his decision by pointing out the flaws in the Obama administration’s arguments, iterating that Sebelius’ non-scientific, politically motivated decision could have detrimental consequences.

In 2011, Sebelius defended her decision to restrict access of the pill for younger girls because “there are significant cognitive and behavioral differences between older adolescent girls and the youngest girls of reproductive age.” President Obama backed up his Health Secretary, saying one should “not be confident that a 10-year-old or an 11-year-old go 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.” 

Korman blasted this message as both contradictory and illogical. First of all, the judge notes that Sebelius does not mention any “adverse effect” of adolescent pill use as Obama does. In fact, Korman writes, the drug causes no “known serious or longterm side effects, though they may have some mild short-term side effects, such as nausea, fatigue, and headache.” He bluntly accuses the administration of using junk science to restrict reproductive rights:

This case is not about the potential misuse of Plan B by 11-year-olds. These emergency contraceptives would be among the safest drugs sold over-the-counter, the number of 11-year-7 olds using these drugs is likely to be miniscule … Instead, the invocation of the adverse effect of Plan B on 11-year-olds is an excuse to deprive the overwhelming majority of women of their right to obtain contraceptives without unjustified and burdensome restrictions.

As for the “cognitive and behavioral differences” among younger girls, Korman argues that Sebelius’ decision rests on a cultural standard, rather than reason. Korman acknowledges that younger girls cognitive differences can impede their ability to make, as the FDA puts it “reasoned decisions about engaging in sexual intercourse.” But  restrictions on a practically harmless drug shouldn’t involve someone’s sexual decisions. He adds that aspirin is available over-the-counter without age restrictions.

This case has proven to be particularly controversial because it involves access to emergency contraception for adolescents who should not be engaging in conduct that necessitates the use of such drugs … the standard for determining whether contraceptives or any other drug should be available over-the-counter turns solely on the ability of the consumer to understand how to use the particular drug "safely and effectively."

Korman cites a peer-reviewed study suggesting that age-based restrictions on emergency contraceptive exposes girls to “increased risk of unwanted pregnancy,” disproportionately affecting “young women and low-income women, two groups that could significantly benefit from timely access to and use of the product.”

Steven Hsieh is an editorial assistant at AlterNet and writer based in Brooklyn. Follow him on Twitter @stevenjhsieh.

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