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Federal Judge Agrees to Review Age Restrictions on Morning-After Pill

Let’s update that federal court hearing on the age restrictions of the morning-after pill. Judge Edward Korman heard arguments yesterday, and while he did not take action against the FDA, he did move the case forward:

A federal judge Tuesday rejected a request to hold the Food and Drug Administration in contempt of court over its policy on the emergency contraceptive Plan B but said he would consider reviewing the government’s refusal to make it easier for girls and women to get the drug.

U.S. District Judge Edward R. Korman in Brooklyn agreed with the government that the request to hold the FDA in contempt was “moot” because the agency had reviewed a petition by family planning groups to make Plan B available without a prescription and had concluded Monday that there was insufficient evidence to do so.

But Korman said he was willing to hear arguments over whether the agency should have allowed the sale of the morning-after pill to girls younger than 17 without a prescription, and he instructed advocacy groups to file the appropriate legal motions. Korman specifically suggested adding Health and Human Services Secretary Kathleen Sebelius to the lawsuit.

The Center for Reproductive Rights, which is leading the court challenge, said it would comply with the judge’s request.

This is the culmination of a ten-year lawsuit, which only coincidentally lined up with the HHS ruling on Plan B last week. The Center for Reproductive Rights has tried to make the morning-after pill available to teenage women without a prescription for a long time now. Korman already ordered the FDA to lower the age requirement to 17 back in 2009. And he said at the time that the FDA made “arbitrary and capricious” decisions to restrict the sale of Plan B, influenced by “political and ideological” concerns. I don’t know how you can look at the recent ruling, which was made not by FDA researchers or scientists but a political appointee, and not think the same thing.

Importantly, this hearing involves the two-pill Plan B, not Plan B One-Step, the one-pill drug that HHS ruled on last week. FDA defends their position on restricting the age of the two-pill drug cocktail, as separate from Plan B One-Step. The Center for Reproductive Rights wants all contraceptive choices made available to women of all ages.

The case is likely to drag on for some time.

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David Dayen

David Dayen

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