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

Feminists Win Landmark Birth Control Victory

Today, a U.S. federal judge ordered that the Morning-After Pill be made available “without a prescription and without point-of-sale or age restrictions within thirty days.”

Judge Edward R. Korman of the U.S. District Court for the Eastern District of New York issued his Memorandum Opinion and Order in Tummino v. Hamburg which reversed a prior decision by the Food and Drug Administration (FDA) and Health and Human Services (HHS).

Judge 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.'”

Read the court’s full opinion here

For over a decade, grassroots feminist activists with National Women’s Liberation (NWL) – who include the lead Plaintiffs in the Tummino case – have been waging the most important fight on expanding access to birth control in decades in the United States: to make the Morning-After Pill available over-the counter without any restrictions on age or how it can be sold. Today’s ruling is a significant victory in the fight for reproductive rights.

Annie Tummino, lead Plaintiff and Coordinator of National Women’s Liberation said, “This decision is a welcome advance and affirms what feminists have been fighting for all along – the Morning-After Pill should be available to females of all ages, on the shelf at any convenience store, just like aspirin or condoms. Women and girls should have the absolute right to control our bodies without having to ask a doctor or a pharmacist for permission.”

“Women and girls have won a landmark victory today for reproductive justice,” said Andrea Costello, Partnership for Civil Justice Fund Senior Staff Attorney representing the NWL Plaintiffs. “The denial of full access to the Morning-After Pill has been an outrageous political decision and wholly without scientific basis – under both the Bush and Obama Administrations. The court’s decision dramatically expands access to a safe and effective form of birth control and is a ruling in favor of science and for justice for women.”

The FDA’s decision making about whether to put the Morning-After Pill over-the-counter was subject to endless delay and anti-birth control politics. The unnecessary restrictions that were imposed by the FDA were never supported by scientific evidence,” said PCJF Attorney for the NWL Plaintiffs, Andrea Costello. “This decision dramatically expands access to a safe and effective form of birth control and a ruling in favor of science and justice for women. Women and girls can claim a reproductive justice victory today.”

Plaintiff and NWL-New York Chapter organizer Erin Mahoney said, “The Morning-After Pill was already available without a prescription in at least 63 other countries, including the United Kingdom, France, Denmark and Ghana. We are glad the U.S. has finally caught up to women around the world, but it shouldn’t have taken over a decade of pressure from feminists, our allies and a lawsuit.”

“National Women’s Liberation believes that any female old enough to get pregnant is old enough to decide that she doesn’t want to be pregnant. This decision to grant immediate access to the Morning-After Pill is a huge step forward in the fight for women and girls to be able to control the course of their lives,” said Plaintiff Stephanie Seguin, NWL-Gainesville Chapter organizer.


The Partnership for Civil Justice Fund (PCJF) represents grassroots feminists activists with National Women’s Liberation (NWL) and 15 year-old Anaya Kelly in Tummino v. Hamburg, the lawsuit against the Food and Drug Administration and Health and Human Services to remove all restrictions on over-the-counter access to the Morning-After Pill (also known as Plan B One-Step or “emergency contraception”) for all women and girls in the United States. As of the court’s ruling today, emergency contraception was kept behind a counter, only available without a prescription for women age 17 and older, and government issued identification had to be shown to buy it.

The lawsuit, originally filed on January 21, 2005, uncovered evidence that the Bush Administration pressured FDA review staff to enact an age limit on the pill for political reasons. On March 23, 2009, the Court ruled that the FDA “acted in bad faith and in response to political pressure,” “departed in significant ways from the agency’s normal procedures,” and engaged in “repeated and unreasonable delays.” The Court ordered the FDA to make Plan B available over-the-counter without a prescription to 17 year olds (the drug was previously limited to women ages 18 and up). The Court also ruled that the FDA had to reconsider whether to approve a Citizen Petition, filed by women’s health and reproductive rights organizations in 2001, asking for unrestricted over-the-counter status for women and girls of all ages.

In December 2011, the FDA finally decided to eliminate the unnecessary age restriction, but in an unprecedented move, HHS blocked the change with President Obama’s support. The FDA then denied the Citizen Petition. On February 8, 2012, Plaintiffs moved to re-open the case, added HHS Secretary Kathleen Sebelius as a Defendant and filed a motion for preliminary injunction and for summary judgment. For more information about the case, follow this link.

NWL has led the grassroots fight for unrestricted access to the Morning-After Pill in the U.S. From sitting in at the FDA, sending the FDA over 4,000 petition signatures, speaking out at HHS, to filing this lawsuit, NWL members have been at the forefront of this struggle, winning a huge victory in 2006 when the FDA decided to eliminate the prescription requirement for women ages 18 and up, and another in 2009 when the Judge ordered the FDA to eliminate the prescription requirement for girls aged 17. For more information, go to the National Women’s Liberation website.

The Partnership for Civil Justice Fund is a not-for-profit constitutional rights legal and educational organization that brings a unique and cutting edge approach dedicated to the defense of human and civil rights secured by law, the protection of free speech and dissent, and the elimination of prejudice and discrimination. The PCJF’s work includes: constitutional law, civil rights, women’s rights, economic justice matters and Freedom of Information Act cases. For more information go to:www.JusticeOnline.org

The case is in cooperation with Kirsten Clanton of Southern Legal Counsel and the Center for Reproductive Rights. Plaintiffs include: the Association of Reproductive Health Professionals, the National Latina Institute for Reproductive Health and young women and their parents.