Government will appeal Plan B emergency birth control ruling

Federal attorneys are seeking to overturn an order by a U.S. district judge that would make some emergency contraceptive pills available to consumers of all ages without a prescription.
(Justin Sullivan / Getty Images)

The U.S. attorney’s office announced late Wednesday that it would appeal a federal judge’s decision to make Plan B One-Step and related emergency birth control pills available to consumers of all ages without a prescription.

In papers filed with the U.S. 2nd Circuit Court of Appeals, government lawyers have asked that the court overturn an order by U.S. District Judge Edward Korman. They have also requested that Korman stay his order until the appeal is resolved.

Korman, who has harshly criticized government health officials for their handling of the so-called morning after pill, ordered that all levonorgestrel-based emergency contraceptives like Plan B One-Step be made available, over the counter, beginning next Monday.


The appeal notice comes just one day after the Food and Drug Administration announced it was lowering the minimum age for consumers to buy the drug from 17 to 15 years old. The drug can be purchased without a prescription, but consumers must show ID proving their age.

FDA officials said their decision was based on a pending, amended application submitted by the drug’s manufacturer, Teva Womens’ Health Inc., and was not related to Korman’s order.

In Wednesday’s court filing, government attorneys said the appeal was justified because it was up to the FDA, not the court, to determine how drugs were sold.

“The public interest will not be served by reclassification of drugs as non-prescription by order of a court, without appropriate agency decision-making procedures being followed,” wrote Loretta Lynch, U.S. attorney for the Eastern District of New York.

“A stay of the court’s order will prevent public uncertainty regarding the status of the drugs at issue here pending the government’s appeal to the second circuit,” she said.

Korman made his ruling on April 5, and said it would take effect in 30 days.

In a statement issued late Wednesday by the plaintiff in the case, the Center for Reproductive Rights, President and Chief Executive Nancy Northup said the government was impeding access to a needed drug.

“Women who urgently need emergency contraception have been delayed in getting it or denied access entirely for more than a decade because of the political maneuverings of the last two presidential administrations,” Northup said.

“The federal court has made clear that these stalling tactics were based purely on politics, not science.

The drug, a synthetic hormone, prevents pregnancy by blocking ovulation and impeding the mobility of sperm. It does not cause an abortion in women who are already pregnant, nor does it harm a developing fetus.

The pills are most effective when taken immediately after intercourse and preferably within 24 hours, although they are sometimes effective even after 72 hours.

Critics have argued that easy access to the drug would encourage sexual activity and promote the spread of sexually transmitted infections.

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