A U.S. appeals court on Wednesday said that some emergency contraception pills now can be sold over-the-counter without age restrictions while the federal government fights a lower court judge’s order allowing unrestricted sales.
In a brief order, the 2nd U.S. Circuit Court of Appeals allowed the two-pill version of emergency contraception to be sold without limits, including to girls under age 17, saying the U.S. Food and Drug Administration had not met the legal standard to justify limits.
But the court agreed with the FDA request to suspend unrestricted sales of one-pill variants such as Teva Pharmaceuticals Industries Ltd ‘s Plan B One-Step, during the appeal. It did not explain its reasoning.
FDA spokeswoman Stephanie Yao said the agency is reviewing the decision.
Wednesday’s decision is a partial defeat for the Obama administration, which was accused of putting politics ahead of the science when U.S. Health and Human Services Secretary Kathleen Sebelius in 2011 overruled her scientists and reversed an earlier FDA decision to make the pills universally available.
The FDA, which is part of HHS, is appealing an April 5 order by U.S. District Judge Edward Korman in Brooklyn, N.Y., that it lift restrictions that barred girls under age 17 from buying the pills, often referred to as “morning-after” pills, without prescriptions.
Korman called the limits “arbitrary, capricious and unreasonable,” and accused Sebelius of acting with “obviously political” motivation in overruling the FDA.
Sebelius’ December 2011 decision came 11 months ahead of the presidential election.
It sparked criticism that Obama was trying both to placate more conservative voters who might favor tougher limits on contraception, and to avoid socially divisive issues that could cost him votes.
Some doctors advising the FDA had also concluded that morning-after pills were safe for younger adolescents and did not cause promiscuity.
Korman had temporarily delayed enforcing his decision so that the FDA could appeal. Wednesday’s order lifts that halt for two-pill variants.
Nancy Northup, president of the Center for Reproductive Rights, welcomed Wednesday’s order.
“After more than a decade of politically motivated delays, women will no longer have to endure intrusive, onerous and medically unnecessary restrictions to get emergency contraception,” she said in a statement.
The 2nd Circuit agreed to hear the appeal on an expedited basis. It also on Wednesday issued a briefing schedule but soon withdrew it, saying it appeared to have been issued in error.
The case is Tummino et al v. Hamburg et al, 2nd U.S. Circuit Court of Appeals, No. 13-1690.
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