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“Plan B” access ordered

The Second Circuit Court on Wednesday cleared the way for women and girls, of all ages, to obtain one version — in two pills — of the emergency contraceptive “Plan B” from drug stores without a doctor’s prescription and with no other restrictions.  But, in the same order, the panel kept in effect a restriction on the much more widely sought version — the one-pill “Plan B One-Step” drug.

The two-pill Plan B is now available only as a generic drug, and it accounts for only about fifteen percent of the market for drugs in this category.  Under current government policy, the newer, one-pill version is available only for women fifteen years old or older, but any buyer has to prove her age with a government-issued ID and can buy the drug only at stores that have a pharmacy on site.   The Circuit Court will consider, on an expedited basis, whether to lift the restrictions on that version, too.

Women’s rights advocates have been engaged in a twelve-year legal battle with the federal Food and Drug Administration over access to “Plan B,” a drug that has proven to be quite effective in preventing pregnancy after unprotected sexual intercourse, if the drug is taken promptly.   The two-pill version was available first, and is rapidly being displaced among consumers who qualify to buy it by the one-pill One-Step.

Senior U.S. District Judge Edward R. Korman of Brooklyn, New York, had ordered the Obama administration to lift all restrictions — age and at the retail counter — on the version that it considered to be the most effective.  That decision, if it is ultimately upheld in response to the government’s appeal, very likely would mean completely open access for all women to the one-pill variety, more popular partly because of its convenience.

The Second Circuit motions panel, in its order Wednesday, turned down the government’s plea to block all of Judge Korman’s order.  Instead, it refused to block access to the two-pill variety, while blocking access — except as allowed by the current FDA policy — to One-Step.

In turning down the request to forbid complete open access to two-pill Plan B, the Circuit Court panel said government lawyers had failed to meet the legal requirements for postponing the effect of a judge’s ruling.   So, on that version, the panel lifted a temporary order it had imposed last month.

The order went on to declare that the Circuit Court’s review of access to One-Step will be carried out on an expedited basis, with the court’s clerk to work out the details of that schedule.

The administration has the option of asking the Supreme Court to delay all of Judge Korman’s access order.   An FDA spokeswoman, asked for comment, said: “We are reviewing the decision, and we will determine next steps.”


Recommended Citation: Lyle Denniston, “Plan B” access ordered, SCOTUSblog (Jun. 5, 2013, 2:40 PM),