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Winning the Fight for Over-the-Counter Access to Plan B, Emergency Contraception 


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. 

Tummino v. Hamburg, United States District Court for the Eastern District of New York | Case No. 1:12-cv-00763-ERK-VVP

United States Court of Appeals for the Second Circuit | Case No. 13-1690

Plan B (Tummino) – Memo and Order 2009

Plan B (Tummino) Plaintiffs’ Post-Remand Motion and Memo for Preliminary Injunction and Summ Judgment 2012

Plan B (Tummino) – Fifth Amended Complaint 2012

Plan B (Tummino) – Reply in Support Motion for Preliminary Injunction and Summary Judgment 2012

Plan B (Tummino) – Second Amended Supplemental Complaint 2012

Plan B (Tummino) – Cross Motions for Summary Judgment 2013

Plan B (Tummino) – Transcript of Hearing on Def. Motion to Stay Court Order 2013

Plan B (Tummino) – Court Order Denying Motion for Stay 2013

Plan B (Tummino) – Second Circuit Order on Motion to Stay 2013

Plan B (Tummino) – Court Memorandum 2013


Judge Calls Obama Administration Position a “Charade” in Blocking Morning After Pill

Court Orders Morning-After Pill Must Immediately Go Over the Counter Without Restrictions

Court Orders FDA to Remove All Restrictions on the Morning-After Pill

Court Cautions Feds on Morning-After Pill Exclusivity Deals

Court Denies Government’s Motion to Stay Order that Morning-After Pill Be Made Available Without Restrictions

Obama Administration Announces it is Dropping Legal Fight to Keep Morning-After Pill from Women in U.S.

Press Coverage

The Gainesville Sun – Huge win for morning-after pill; judge lifts age restriction

The Associated Press – NY judge makes morning-after pill available to all

Reuters – Groups say FDA’s Plan B decision falls short of court order

The Washington Times – Attorney who fought contraception limits hits Obama administration’s tactics

The New York Times- Judge Refuses to Drop Order on Contraceptive Pill Without Regard to Age

The Guardian – FDA must comply with Plan B morning-after pill ruling, campaigners say

The New York Times – U.S. Drops Bid to Limit Sales of Morning-After Pill

NPR – Judge Reluctantly Approves Government Plan For Morning-After Pill

The New York Times – A watershed moment in the fight for women’s reproductive rights

The Week – Why the White House is fighting greater access to the morning-after pill