The Art of Pleasing No One

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Yesterday evening, my twitter feed exploded with the news that the Food and Drug Administration (FDA), in all its glorious wisdom, had decided to lower the age at which Plan B could be sold over the counter from seventeen to fifteen. The decision would allow Plan B – the morning-after pill – to be placed on shelves next to other contraceptive products such as condoms, but in a package containing a code that prompts cashiers to verify a customer’s age prior to purchase.

Now, if you’ve only vaguely been paying attention to the kerfuffle surrounding women’s health issues the past few years, you might be thinking to yourself, “self, nice – this sounds like a good idea.” But, alas, I’m here to disabuse your poor, undereducated self of that notion.

In 2011, the FDA recommended that Plan B be made available without a prescription to women of all ages, with Commissioner Margaret Hamburg stating that:

I reviewed and thoughtfully considered the data, clinical information, and analysis provided by [the Center for Drug Evaluation and Research], and I agree with the Center that there is adequate and reasonable, well-supported, and science-based evidence that Plan B One-Step is safe and effective and should be approved for nonprescription use for all females of child-bearing potential.

Oh, the good old days – when the FDA listened to science instead of politics when it came to women’s health.

Despite this ringing endorsement of Plan B’s safety and efficacy, however, Health and Human Services Secretary Kathleen Sebelius determined that, while girls as young as eleven were capable of becoming pregnant and bearing children, they should not be permitted to purchase a drug that even the American Academy of Pediatricians agrees is safe to be provided to them to prevent pregnancy. Instead, the administration directed the FDA to issue a statement that Plan B would only be made available without a prescription to women aged seventeen years or older.

So this latest decision – lowering the age to fifteen – should be hailed as great news, right?

Wrong.

How wrong? Oh, let me count the ways.

First, this move flies in the face of the April 5th decision by the U.S. District Court for the Eastern District of New York, in which Judge Edward R. Korman issued a ruling ordering that the morning-after pill be made available “without a prescription and without point-of-sale or age restrictions within thirty days.”

In his opinion, Judge Korman rightly found the administration’s  “unjustified departure” from standard precedent to make safe medications readily available to the public to be based on arguments that were primarily an “excuse to deprive the overwhelming majority of women of their right to obtain contraceptives without unjustified and burdensome restrictions.”

My lawyer spidey sense is tingling right now and I can’t get Eisenstadt v. Baird‘s privacy line out of my head,

If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.

The FDA’s decision to continue to require a prescription for consumers under the age of fifteen, and to require government-issued identification for purchase of the medication above that age clearly violates not only Korman’s order prohibiting the use of prescriptions, point-of-sale, and age restrictions, and constitutes a continued violation of women and girls’ right to obtain contraceptives without unjustified and burdensome restrictions, but also a woman’s CONSTITUTIONALLY protected right to be free from unwarranted governmental intrusion onto matters affecting her decision whether or not to become pregnant.

Emergency contraception IS contraception. And there is no governmental justification great enough to warrant the invasion of privacy necessary to deny access to this EXTREMELY safe medication, even to minors (especially when faced with advice from the AAP saying it’s safe!).

Somehow the FDA violating such a fundamental right as this just seems…well, fucked up.

Second, how many fifteen year olds do you know who have government-issued IDs that list their age?

According to the FDA’s decision, consumers will be required to show a government-issued ID listing their age in order to purchase Plan B. That means, practically speaking, that consumers will need to show a birth certificate, driver’s license / learner’s permit, or a passport in order to walk out of a store with Plan B.

I don’t know about you, but I don’t know many fifteen year olds who know where their birth certificate currently is, let alone carry it around with them. I’ll even be totally honest and say my thirty-something self doesn’t even have a copy of mine on hand. *Note to self: Get copy of birth certificate.

As for a driver’s license or learner’s permit, only 27 US states allow minors age 15 or younger to be issued learner’s permits (the most common form of age-verifying ID used by minors). The other 23 states require minors to be at least 15 years and 6 months before obtaining a permit, and that’s if they obtain the permit on the first day on which they are able.

And as for passports, well, with only about a third of US citizens holding passports, it’s not hard to imagine that a much smaller (some might say minuscule) percentage of that number would be minors aged 15 to 17.

Additionally, I thought readers might be interested in noting the correlations between this map of US passport ownership:

And this map on teen birth rates:

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Graph courtesy of the Guttmacher Institute: http://www.guttmacher.org/pubs/FB-ATSRH.html

It would appear that the very states where young women might most need Plan B are also the states where they are least likely to have one of the forms of identification they would need to purchase it.

Also, know many undocumented immigrants who have government-issued IDs? Yeah, me neither.

Requiring government-issued ID to purchase a medication that the FDA has previously determined to be SAFE and EFFECTIVE for all ages will disproportionately impact women living in poverty, women of color, and undocumented immigrant women.

As Nancy Northrup, president of the Center for Reproductive Rights stated yesterday, lowering the age limit for the purchase of Plan B

may reduce delays for some young women but it does nothing to address the significant barriers that far too many women of all ages will still find if they arrive at the drugstore without identification.

Third, according to the FDA’s newest ruling, what now stands between a woman and her access to contraception is now someone with absolutely no medical training whatsoever: a cashier. The FDA has given cashiers the authority to request and verify a customer’s age before allowing a customer to purchase Plan B.

Absolutely nothing could go wrong with that whatsoever, right? It’s not like women have had any problems accessing this medication before from actual qualified medical professionals. Oh wait

I’m suddenly having visions of the guy who gives me the change for my body wash at my local CVS being legally permitted to not sell me Plan B because his “conscience” tells him it’s wrong. Sound ridiculous? Yeah, we all thought that when we first heard it about pharmacists, too.

And fourth, to return to the title of this post, this decision “pleases” NO ONE. As has often been the case with decisions by the Obama administration, by attempting to find a middle ground, the FDA has effectively ensured mutual dissatisfaction and unrest.

While the FDA has claimed it’s decision was not in response to the earlier court decision but instead to TEVA’s (Plan B’s manufacturer’s) post-Sebelius decision application for with a 15 year compromise, it is naive to assume that the body did not know the impact such a decision would have in this heated political climate.

Those who support a woman’s right to bodily integrity, to health, to life, to privacy, and to determine the number and spacing of children are no more pleased by this decision than they were by Sebelius’ decision to limit Plan B’s distribution without a prescription to those 17 and older. For us, Plan B has been proven time and again to be a safe form of contraception that should be made readily available without prescription and without age restrictions. If a woman or girl is old enough to become pregnant, she is old enough to determine whether or not she wants to become pregnant. Ensuring access to Plan B helps her make that decision.

And for those who would deny a woman those same rights, allowing anyone to purchase emergency contraception, let alone minors (GASP! Won’t somebody please think of the children!), let alone fifteen year old minors, is sure to only further stoke the fires fueling their war on women.

Regardless of TEVA’s now years-old amended application, the MOMENT the judicial ruling came down supporting TEVA’s original application (and the FDA’s original decision, might I add), the FDA should have issued a ruling approving TEVA’s original application. Period. Full stop. Fin.

To do anything less than allowing the full access that women and girls deserve is to continue to impermissibly deny them the full access to their constitutional and human rights.

As a final comment, I think it’s important to take note here of the fact that this decision was issued INCREDIBLY close to the May 5th deadline imposed by Judge Korman’s  decision. While the White House and the Department of Justice have to comment on the decision, and have yet to comment on whether they intend to appeal Judge Korman’s ruling, many reproductive health advocates have taken the FDA’s ruling as a sign that the administration intends to appeal the district court opinion.

Last Friday, President Obama became the first sitting President to address Planned Parenthood as he addressed more than fifty thousand supporters at the organization’s annual meeting. During his speech, he shared the following words:

“When it comes to a women’s health, no politician should get to decide what’s best for you. The only person who should get to make decisions about your health is you.”

For President Obama, apparently determining whether or not to take the morning-after pill isn’t one of those things that only a woman should get to decide. Apparently Plan B is a unicorn-like mythical women’s health issues where it’s permissible for a politician to determine what’s best for women.

Till next time,

– H

© Heather Parker and Antigone Awakens, 2012-2013.

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