The Obama Administration's Plan to Keep Plan B Restrictions In Place

Your News Companion by Ben Mathis-Lilley
May 2 2013 11:22 AM

The Obama Administration's Plan to Keep Its Plan-B Restrictions In Place

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A package of Plan B contraceptive is displayed at Jack's Pharmacy on April 5, 2013 in San Anselmo, California

Photo Illustration by Justin Sullivan/Getty Images

The Obama administration announced late Wednesday that they'll fight a federal ruling that would make Plan B One-Step available to all women of reproductive age, without a prescription. The move comes less than a month after the U.S. district court ruling and only days before the Sunday deadline for the order to take effect.

The White House's appeal isn't exactly surprising: Earlier on Wednesday, the administration lifted some restrictions on the sale of Plan B — but not enough to meet the judge's requirements, indicating that the new rules in place could be an attempt to find a political compromise on the issue. Based on a request by the emergency contraceptive's manufacturer, the pill will sit on pharmacy shelves (previously, you'd have to request the drug from a pharmacist), and the age restriction will drop from 17 to 15. An ID will still be required for purchase. As Amanda Marcotte noted over on XX Factor yesterday, that move is definitely an improvement over current rules (and makes it easier for men to buy the pill, which they are legally allowed to do), but isn't close to what the judge ordered. For one thing, how many 15-year-olds have a valid, government-issued ID, Marcotte asks.

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There's also another thing that the new, looser restrictions will do, as the Washington Post notes: It'll weaken the specific case that led to the April order. Every plaintiff in that case is 15 or older, so they're now legally able to buy Plan B. In their appeal, the Justice Department argues that the order "interferes with and thereby undermines the regulatory procedures governing the FDA's drug approval process."

Citing the fact that none of the plaintiffs will now be harmed by a delay under the new Plan B restrictions, the administration asked U.S. District Court of the Eastern District of New York to stay the April ruling by Judge Edward R. Korman. That ruling, essentially, called the government's restrictions on the pill in the name of protecting the health of 10 and 11-year-old girls  "arbitrary, capricious, and unreasonable," arguing, that the restrictions are inconsistent with the FDA's treatment of other over-the-counter approved drugs: "the number of 11-year-olds using these drugs is likely to be minuscule, the FDA permits drugs that it has found to be unsafe for the pediatric population to be sold over-the-counter subject only to labeling restrictions."

In 2011, the FDA decided to make Plan B available over-the-counter to anyone of reproductive age, but Health and Human Services secretary Kathleen Sebelius took an unprecedented step and overruled the decision, restricting sales to women aged 17-and-older, with ID. Despite scientific consensus that the pill is safe, does not encourage promiscuity, and does not cause an abortion, it remains a site of social and political controversy. And it looks like the Obama administration isn't willing to give up their fight on it any time soon.

Abby Ohlheiser is a Slate contributor.

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