Winning the Fight for Over-the-Counter Emergency Contraception

Background

For over a decade, the Food and Drug Administration, under both the George W. Bush and Barack Obama administrations, refused to remove restrictions on access to the Morning-After Pill (also known as “emergency contraception,” or Plan B) that were never supported by scientific evidence, politicizing access to reproductive health care and perpetuating the patriarchal repression of women and girls and the denial of bodily autonomy.

The PCJF, with lead counsel Andrea Costello, and co-counsel the Center for Reproductive Rights successfully waged a battle for access to Emergency Contraception on behalf of Plaintiffs Annie Tummino and National Women’s Liberation.

After years of litigation, in 2013, the U.S. District Court for the Eastern District of New York ruled in the Plaintiffs’ favor in Tummino v. Hamburg, ordering the pills be made available without a prescription, age restrictions, and without being held behind a pharmacy counter.

Judge Edward R. Korman found that “[t]hese emergency contraceptives would be among the safest drugs sold over-the-counter.”

Citing the Obama administration’s “unjustified departures” from established policy to make safe medications available to the public, the court found that the administration invoked arguments that were an “excuse to deprive the overwhelming majority of women of their right to obtain contraceptives without unjustified and burdensome restrictions.”

Referring to “political interference” from the White House, the judge stated, “the motivation for [Secretary Sebelius’] action was obviously political. … [I]t was an election year decision that ‘many public health experts saw as a politically motivated effort to avoid riling religious groups and others opposed to making birth control available to girls.”

At a hearing after the ruling, as the Obama administration continued to refuse to comply with the Court’s directive, the Court called the government’s conduct a “charade” the Judge condemned the “political influence” that has caused a “total and complete corruption of the administrative process.”

The Obama administration then filed an appeal with the Second Circuit seeking to impose scientifically unjustified restrictions on access to the pills. The administration filed its appeal one day after it announced a “sweetheart” arrangement with the manufacturer of the one-pill emergency contraceptive drug that would force all consumers to show their IDs to store clerks in order to obtain emergency contraceptives, and would continue to deprive over-the-counter access to young teenagers.

The Plaintiffs’ legal team continued the fight at the Second Circuit which ultimately held that the government had to make the two-pill emergency contraception immediately available.

In June 2013, the Obama Administration finally agreed to make the drug available without restrictions and dropped its appeal with the Second Circuit.