New Developments in OTC Emergency Contraception Court Case

By Rachel Walden |

First, a quick refresher:

A couple of months ago a judge ordered that emergency contraception pills (like Plan B) be made available over the counter (OTC) without age restrictions. The U.S. Justice Department appealed that ruling, and asked for a stay so that OTC access wouldn’t take effect during the appeals process.

Around the same time, the FDA approved Plan B One-Step emergency contraception pills for purchase without a prescription for teens ages 15 and older.

On Wednesday, the Second Circuit Court of Appeals denied the stay for two-pill types of emergency contraception. This means that two-pill regimens should become available without prescription to women and girls of all ages even before the government’s appeal is resolved. The Court allowed the stay for one-pill variants of emergency contraception (e.g. Plan B One Step), and stated that the appeal process would be expedited.

Women’s health advocates have been fighting for more than a decade to make OTC emergency contraception a reality.

Nancy Northup of the Center for Reproductive Rights called Wednesday’s order “a historic day for women’s health,” adding: “Expanding access to this safe and effective way of preventing pregnancy after failed birth control or unprotected sex is the among the very best decisions our federal government can make for women’s health.”

Marcia Greenberger of the National Women’s Law Center remarked, “The Center applauds today’s decision, which underscores the simple fact that there is no reasonable basis for restricting access to this safe and effective birth control.”

The American Academy of Pediatrics, American College of Obstetricians and Gynecologists, and Society for Adolescent Health and Medicine have collectively denounced the administration’s decision to appeal the ruling at all, and issued a strong statement rejecting limited access: “There is no scientific justification for a continued age restriction on emergency contraception. The Administration’s decision puts the health of adolescent girls at risk and is inconsistent with what we know about the safety and benefits of emergency contraception.”

It’s unclear what will happen next in the fight for more accessible emergency contraception. The Justice Department has stated only that they are reviewing the order. According to SCOTUSblog, the administration has the option of asking the Supreme Court to delay all parts of that initial order for OTC access without age restriction. NPR’s Shots explains that “some lawyers say the government might be able to appeal to the full 2nd Circuit. But more likely, if they insist on fighting, government attorneys would have to seek relief from the Supreme Court justice who oversees the 2nd Circuit — Ruth Bader Ginsburg.”

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