Published DateIf you're having trouble following all of the twists and turns in the saga relating to the availability of what is commonly referred to as the "morning-after pill," you're not alone.
First some basic facts: The emergency contraceptive must be taken within five days of unprotected sex, and contrary to claims of certain anti-abortion activists, it prevents fertilization in the first instance (rather than causing a miscarriage). There are two versions: the original two-pill version and a more recent one-pill version.
It's been nearly a decade since the lawsuit that has been winding its way through the courts (and onto the front pages) was filed. At that time, the only version was two pills, which is why (as best as I can tell) the latest decision from the United States Court of Appeals for the Second Circuit ordering the government to lift all age restrictions on purchases until it decides the merits of a pending appeal applies only to the two-pill version.
The appeal is from a decision by a federal district judge holding that all versions of the pill should be made available to all ages over the counter. The Obama administration sought to "stay" the judge's decision (meaning it should not be allowed to go into effect) and has argued that access should be limited to girls over 15, overruling a recommendation from the FDA that would have lifted all restrictions (like the judge's decision).
Then, last month (if you're still with me), the FDA announced that one of the one-pill brands should be made available to girls over 15, provided they show identification. The appeals court rule doesn't apply to that version.
What is really going on here? According to the respected federal judge who decided this case, it is simple: politics. Judge Edward R. Korman has not minced words, criticizing the "bad faith, politically motivated decision of (Health and Human Services) Secretary Sebelius, who lacks any medical or scientific expertise."
I think so.
The argument against the morning-after pill is that it will encourage young people to have sex. I find it hard to believe that 12- and 13-year-olds are deciding whether to have sex based on the availability of emergency contraception. If only such decisions were made in the kind of rational, logical way that would involve a weighing of such factors. Seriously.
As for the danger of the drug, most scientists seem to believe acetaminophen carries more risk — not to mention pregnancy. Most studies find that it's largely adults who use the morning-after pill, not teens. But requiring a government-issued ID to prove age may limit access to the pill for those of any age, and keeping it locked up behind the counter will make it more burdensome or embarrassing for those who need it to ask for it. I used to be embarrassed buying sanitary napkins at that age. Asking a pharmacist for the morning-after pill? Why make it any more difficult? Do we really want these girls to get pregnant?
No one, including the president, likes the idea of children having sex. Back in December of 2011 (when, perhaps not coincidentally, the president was in the middle of a re-election campaign), he endorsed Sebelius' decision, saying that as a father, it made him very uncomfortable to think of young girls having access to the morning-after pill without a prescription.
Of course it does. But the prescription is hardly the reason. Children should not be having sex. Can't we all agree on that?
But even more fundamentally, children should not be having children. One thing is for sure: The risks to an 11-year-old that come with an unwanted pregnancy — in terms of both her physical and mental health — are far greater than the risk associated with taking one or two pills to prevent fertilization. If we have a safe and effective way to prevent that, why wouldn't we allow it?
(Susan Estrich is a professor of Law and Political Science at the University of Southern California Law Center. A best-selling author, lawyer and politician, as well as a teacher, she first gained national prominence as national campaign manager for Dukakis for President in 1988.)