If you have been following our blog for awhile you may have read an article from a few weeks ago about the FDA’s long history with Plan B and other emergency contraceptives. In it we mentioned that the Center for Reproductive Rights filed suit to have the FDA held in contempt of court for procrastinating a decision about Plan B being made available to all women without a prescription as they had been ordered to do. You also remember our piece saying that the FDA had made a decision to allow OTC status for all ages but this decision was overruled by the Secretary of Health and Human Services Kathleen Sebelius. Well Secretary Sebelius’s decision did not cancel out the pending hearing and Judge Korman had some interesting things to say.
Korman is the same judge who ordered the FDA to reconsider its mandate to require a prescription for women under 18 and to lower the age to 17 until they could re-review the evidence for younger women. Judge Korman after hearing arguments from lawyers from the CRR and the government decided to dismiss the charges of contempt against the FDA, apparently because the question is now “moot” considering Secretary Sebelius’s decision. He did however urge the CRR to re-file their suit and add Secretary Sebelius as a defendant.
This bodes well for people who support greater access because Korman has, in past rulings, leaned toward the side of greater access. He is reported to have asked the lawyers representing the FDA “whether the study data included information on girls older than the youngest girls of reproductive age but younger than the 17-year-olds currently able to get the pill, and whether they would be able to understand the pill instructions and use it properly… Assistant U.S. Attorney Scott Landau said he couldn’t answer that question, both because it was proprietary information and because the issue hadn’t actually been raised for the court to rule on.”
According to a press release on the Feminist Majority foundation website the CRR will pursue the case by re-filing. “Nancy Northup, president and CEO of CRR, stated, ‘We intend to take every legal step necessary to hold the FDA and this administration accountable for its extraordinary actions to block women from safe, effective emergency contraception. It has been ten years of battling to bring emergency contraception out from behind the pharmacy counter. The FDA cannot simply continue moving the goal posts down the field for women’s reproductive healthcare.’” We will continue to keep you posted as the case develops.