Students on the law: In the Emergency Contraception Debate Politics Still Trumps Science

September 26, 2013

This spring, Life of the Law had the exciting opportunity to work with students at Macalester College on writing about the law and their lives. This week, we’re sharing four of the blog posts that came out of this collaboration … and they’re really good. Here is today’s by student Rebecca Gans.

When I was seventeen, I got a call that girls and women around the country get every day. My friend (we’ll call her Liz) had been sexually assaulted, and she needed to get emergency contraception (EC). Although she was also seventeen and was of legal age to purchase EC without a prescription, Liz had one problem: like many other New York-raised teens, she didn’t have a driver’s license or passport to prove her age. That afternoon, I drove with her to the nearest clinic and purchased EC, while Liz sat outside in the car.

EC, also known commonly as the “morning after pill” or Plan B, has had a long and complex relationship with the law. A committee of the US Food and Drug Administration first recommended that EC be sold over the counter in 2003—this was ten years ago. However, the FDA as a whole rejected the committee’s recommendation, and the ensuing political drama caused the director of the FDA’s Office of Women’s Health to resign in protest. By 2009, the year before I drove Liz to the clinic, the law had gradually changed to the point where EC could be sold over the counter to people over the age of seventeen. For a few years, that was the status quo—but there was more controversy ahead.

In 2011, the FDA officially recommended that EC be available over the counter to people of all ages. In an unprecedented move, Health and Human Services Secretary Kathleen Sebelius overruled the FDA’s decision and chose to maintain the seventeen-and-older age requirement. Pro-choice groups were outraged, but considering EC’s past, not exactly surprised. On April 5, 2013, it seemed that the law was going to swing in the other direction. A Federal District Court judge in New York ruled that the morning after pill must be sold over the counter to anyone, regardless of age. But just as quickly as the tide turned one way, it turned back again. After the ruling invalidated the seventeen-and-older rule, the Obama administration proposed to lower the age requirement to fifteen, a clumsy attempt to respect this decision while not straying too far from their original position on the issue. The administration then moved to appeal the ruling—this announcement coming mere days after President Obama spoke at a Planned Parenthood event at which he enthusiastically pledged his ongoing support of the organization and reproductive health and choice.

Throughout this debacle, those opposing wider availability of the morning after pill return to a few key arguments, but none hold water when subjected to close investigation. One assertion is that teens should talk to their parents before taking emergency contraception, so the prescription requirement (which for most teens would require parental involvement) is necessary.

In an ideal world, this might be true; it would be nice to know that all teens felt safe and comfortable discussing their sexual health and decisions with their parents or guardians, although requiring this in any situation means taking a significant amount of bodily control away from young women. In any case, we do not live in this ideal world. For many teens, speaking to their parents is the worst possible option. This could worsen an already abusive relationship–the unprotected intercourse even could have been the result of incest on the part of the very parent who is supposed to be providing guidance. Also, time sensitivity is at play here; imagine a teen whose parents are away for the weekend, or who is on a school trip out of town. She does not have the luxury of waiting for a convenient time to discuss her situation. The longer she waits to take EC, the less effective it is.

Another common argument concerns the problem of having to show identification to prove one’s age. In theory, a girl who is fifteen years old now has access to EC without a prescription. However, she will need to provide identification to show that she is of age. Those in support of the policy claim that it is not an undue burden to present identification to purchase EC. In reality, those who supposedly gain access to EC because of this policy often do not possess valid identification. In most states, the minimum age for a driver’s license is sixteen, and some states do not even issue permits to fifteen-year-olds. This leaves the option of a passport or birth certificate, but obtaining either of these things often requires parental involvement, a significant monetary cost, or both. If a teen has not already been issued either of these or does not have access to them, by the time she gets them it may be too late to take emergency contraception.  Although this policy may legally allow a fifteen-year-old to buy the morning after pill, these identification requirements mean that the medicine is not always accessible to her.

At its core, this debate is an example of politics trumping science and resulting in poorly constructed and dangerous policy. The FDA decided in 2011 that emergency contraception is safe, easy to determine when to use, and effective. This places it in the same category as ibuprofen or a multivitamin, medicines that can be purchased without the burden of an age restriction and proof of identification. However, two years later, this medicine is still inaccessible to many who need it, and girls like Liz are in the exact same situation as they were when we made our trip to the clinic. While I will keep driving friends to clinics for as long as it is necessary, it is time for politics to be put aside in favor of fair, equitable and accessible healthcare, regardless of age or any other factor.