Appeals panel approved sale of one version, but blocked another pending further review
Groups criticize Obama administration for trying to block sales of birth-control pills to girls
Federal government has 14 days to decide whether to challenge the appeals order
Emergency contraception known as the “morning-after pill” can be sold over-the-counter to minors, a federal appeals court in New York decided on Wednesday.
A generic two-pill version could soon be available without a prescription or any age restrictions, according to an order by the U.S. Court of Appeals for the 2nd Circuit.
But the three-judge panel separately blocked unrestricted sales of a newer, different Plan B one-pill version, until it can further consider the matter.
The Obama administration has been criticized by some women’s rights groups for trying to stop contraception sales to underage females.
Some of those groups applauded the court’s order.
“Once again, the message from the courts is clear: Emergency contraception must be made available over the counter for all ages, and the burdensome practice of requiring girls 16 and under to obtain a prescription and all others to show an ID must end,” said Marcia Greenberger, co-president of the National Women’s Law Center.
The Justice Department appealed a ruling in April by U.S. District Judge Edward Korman, who directed the Food and Drug Administration to make the morning-after birth control pill available to females “of child-bearing age” without a prescription.
The key ingredient in Plan B is the synthetic hormone levonorgestrel, which can prevent fertilization or prevent an egg from embedding in the uterus if it has been fertilized.
Korman’s ruling responded to a lawsuit launched by the Center for Reproductive Rights.
The group sought to expand access to all brands of the morning-after pill over the counter, such as Plan B One-Step and Next Choice, so that females of all ages would be able to purchase them without a prescription.
Supporters of the district court ruling called it a landmark decision, while opponents raised concerns about safeguards being eliminated.
The government now has 14 days to decide whether to challenge the order before the full appeals court or directly to the U.S. Supreme Court.
If the order is not appealed, reproductive rights groups say the two-pill contraceptive could be available at pharmacies in about a month.
Plan B One-Step is an updated one-pill version.
The FDA said last month it was changing its regulations, allowing sales by a private pharmaceutical firm, Teva Women’s Health, to those 15 and over without a prescription. Only those 17 or older were previously allowed to buy the contraceptive.
Korman had criticized what he called “nonsensical” government rules that he said unfairly favored the single pill version over the cheaper, generic two-pill version. Under current policies, prescriptions are still need for the generic version for those under age 17.
The FDA announced two years ago there would be no limits on over-the-counter sales of morning-after pills. But Health and Human Services Secretary Kathleen Sebelius unilaterally ordered the age and prescription restrictions put in place. That prompted the lawsuits.
Emergency contraceptives are intended for use within 72 hours after sex but are most effective if taken within 24 hours.
Many developed countries require a prescription for oral contraceptives, including Canada and most of Europe, but other countries sell the pill without a prescription even formally or informally.
There was no immediate reaction to the order from the FDA or the Justice Department.
The case is Tummino v. Hamburg (13-1690).