Will FDA Decision On Emergency Contraception Open Door For Right-Wing Media Myth Making?

Blog ››› ››› LARA SCHWARTZ

The media have a responsibility to accurately report on the FDA's approval of Plan B emergency contraception for use without a prescription for women 15 years and older, without giving in to false right-wing narratives.

Plan B, also known as the "morning after pill," is an emergency contraceptive that prevents a pregnancy by delaying ovulation or immobilizing sperm.  In April, U.S. District judge Edward Korman, a Reagan appointee, ruled that the Obama Administration had to eliminate age restrictions on access to this emergency contraception without a prescription.  Recently, however, the FDA separetly approved an approval application for over the counter access for women over 15. As explained by the FDA:

On April 5, 2013, a federal judge in New York ordered the FDA to grant a 2001 citizen's petition to the agency that sought to allow over-the-counter access to Plan B (a two dose levonorgestrel product) for women of all ages and/or make Plan B One-Step available without age or point of sale restrictions. However, Teva's application to market Plan B One-Step for women 15 and older was pending with the agency prior to the ruling.

The FDA's approval of Teva's current application for Plan B One-Step is independent of that litigation and this decision is not intended to address the judge's ruling.  

The Department of Justice is considering next steps in the litigation. In the meantime, the FDA took independent action to approve the pending application on Plan B One-Step for use without a prescription by women 15 years of age or older.

Nevertheless, National Review Online is already attacking this decision as a "compromise" that is "all about politics" because unrestricted access to Plan B, which it calls a "sometimes-abortifacient pill," was what the administration "wanted all along," in spite of the clear science that the judge relied on to strike down age restrictions.  

Recent studies have clarified that emergency contraception does not terminate pregnancies.  A 2012 statement by the International Federation of Gynecology & Obstectrics explains:

Two studies have estimated effectiveness of [emergency contraceptive pills] by confirming the cycle day by hormonal analysis (other studies used women's self-reported cycle date). In these studies, no pregnancies occurred in the women who took ECPs before ovulation; while pregnancies occurred only in women who took ECPs on or after the day of ovulation, providing evidence that ECPs were unable to prevent implantation.

As Linda Greenhouse explained in a New York Times op-ed, the judge based his decision on this scientific evidence:

Judge Korman begins where discussions of emergency contraception should begin but almost never do: by defining the drug and how it works. Those challenging the requirement for employer-provided health insurance to cover birth control almost invariably train their attack on emergency contraception by calling it an "abortion pill" or abortifacient and asserting a religious objection to abortion.

But Judge Korman, citing a Government Accountability Office report that collected scientific articles on the mechanism of levonorgestrel, the synthetic hormone that is the drug's active ingredient, demonstrates that Plan B is not about abortion. It immobilizes sperm and prevents or delays ovulation. In other words, when taken shortly after unprotected intercourse, Plan B works as birth control, by preventing rather than terminating a pregnancy. (The F.D.A.-approved label for Plan B raises the possibility that the drug might also work by preventing a fertilized egg from implanting in the uterus to begin a pregnancy, but the National Institutes of Health has removed language raising this prospect from its Web site, and the N.I.H. biochemist in charge of research on contraception has said the language should also be taken off the label. Judge Korman called the prospect that Plan B might permit fertilization but prevent implantation "scientifically unsupported speculation.")

The issue is also playing out in federal courts across the country that are considering employers' challenges to regulations implementing the preventive health services provision of the Affordable Care Act.  Under the ACA, employer-provided health insurance plans must cover contraception.   Owners of private, secular corporations such as the Oklahoma-based Hobby Lobby have sued to block the mandate, claiming that the mandate requires them to cover abortion-inducing drugs in violation of their religious beliefs.  Federal court rulings challenges to the contraception mandate have been mixed.   

As Greenhouse points out , the question of whether Plan B is an abortion-inducing drug has some bearing on the contraception mandate cases:

The debate over the contraception-coverage mandate wasn't part of Judge Korman's case; that issue will be argued next month before the federal appeals court in Denver in a case brought by the owners of the Hobby Lobby retail store chain. I hope the judges who hear the Hobby Lobby case and the other such cases that are cropping up around the country are as precise as Judge Korman in defining what's at issue: evidence-based judging to go along with evidence-based medicine. If the challengers' real objection is to birth control, they shouldn't be able to hide behind the "abortifacient" label.  

The question of whether for-profit corporations have religious liberty rights at all is debatable.  However, if courts conclude that such religious liberty rights exist and they buy the right-wing "abortion pill" myth, employees nationwide could stand to lose reproductive health coverage. 

Posted In
Gender, Health Care, Reproductive Rights, Justice & Civil Liberties
Network/Outlet
National Review Online
Stories/Interests
Courts Matter
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