While women’s rights groups applaud the Obama administration’s decision to stop its pursuit of age restrictions for access to Plan B emergency contraception, they are less than optimistic when it comes to some glaring flaws in the implementation of the new policy. It remains unclear whether or not Teva Pharmaceuticals, the company that produces the more expensive one-pill version of emergency contraception, will be granted exclusivity, which would delay production and access to a more inexpensive two pill version of the product. It will also take time for Teva to redistribute its version of the medication, as it has to re-apply for approval and then repackage its product for over the counter availability (NBC News).
The battle over Plan B access has been arduous. Plan B was first approved by prescription in 1999. In 2006 the prescription requirement was lifted, and it became available over-the-counter to women age 18 and older. In 2009 US District Judge Edward Korman ordered that the age restriction be lowered to 17. After making that decision, he had hoped that the FDA would take the lead in removing the age restriction altogether: “It was my view that the decision whether to make Plan B available without a prescription regardless of age was one that should be made by the FDA … not by a federal district judge” (US News). Yet that did not happen, and Korman was again put in the position of having to rule on this issue.
In April, Korman ruled that there should be no age limit or need for a doctor’s prescription for emergency contraception, whether it is Plan B or its generic equivalent. In his decision, Judge Korman addressed the fact that all over-the-counter medications must adhere to the same standards; one cannot be treated differently than the others. To do so imposes a personal moral code on certain drugs and not others: “The standards are the same for aspirin and for contraceptives. The standard for determining whether contraceptives or any other drug should be available over-the-counter turns solely on the ability of the consumer to understand how to use the particular drug ‘safely and correctly'”(US News).
In response, the Department of Justice initially made the decision to appeal the ruling, but had an apparent change of heart last week, when it announced that it would no longer pursue that appeal. Judge Korman has now approved that decision: “In his ruling, Korman said that the government misinterpreted his April order in several ways, but added that the concerns were not sufficient to prevent him from delaying any effort to make emergency contraception widely available. ‘The effort to convert these levonorgestrel-based contraceptives from prescription to over-the-counter status has gone on for over twelve years, even though they would be among the safest drugs available to children and adults on any drugstore shelf,’ said Korman, who excoriated the government for “‘unjustified political interference'” (NBC News). Lawyers involved in the case stated that they expect to see Plan B available over the counter by mid-July (NBC News).