Plan B For 17-Year-Olds

The FDA has agreed to make the “morning-after pill” available to 17-year-olds without a prescription, pursuant to the order of a federal judge.

Plan B, also called the morning-after pill, is intended to prevent pregnancy after unprotected sex.

Plan B, also called the morning-after pill, is intended to prevent pregnancy after unprotected sex.

On March 23, a federal court ordered that Plan B, an emergency contraception pill, be made available over the counter to those 17 and up, the agency said in a statement on its Web site. The agency will not appeal that order, the statement said.

In the order, U.S. District Judge Edward Korman also asked the agency to consider whether the pill should be available to women of all ages without a prescription, saying that such a determination is best left to the expertise of the FDA rather than a federal district judge.

So, law school gives one sufficient expertise to understand that 17-year-old girls should be allowed unsupervised access to abortificants but not enough to be clear on the status of 16-year-olds? That seems like a serious flaw in the curriculum!

Here’s the other weird thing:  Ordinary birth control pills, designed to prevent pregnancy before the fact, still require a doctor’s prescription even for adults.   By what logic is the federal government required by law to allow access to after-the-fact birth control to minors?

There is no such thing as a 17-year-old “woman,” let alone “women of all ages” defined as “girls 16 and younger.”  At least not in an era when those who look to be under 27 are required to show ID to purchase cigarettes and where 18-year-olds who haven’t yet graduated high school have restrictions on their drivers’ licenses.

And he rebuked the FDA for apparently departing from its own procedures with respect to making decisions on the pill’s over-the-counter status, noting the “unusual involvement of the White House in the Plan B decision-making process.”

The plaintiffs in the case presented “unrebutted evidence of the FDA’s lack of good faith” toward the application to switch Plan B from prescription to non-prescription use, the judge wrote. “This lack of good faith is evidenced by, among other things, (1) repeated and unreasonable delays, pressure emanating from the White House, and the obvious connection between the confirmation process of two FDA commissioners and the timing of the FDA’s decisions; and (2) significant departures from the FDA’s normal procedures and policies … as compared to the review of other switch applications in the past 10 years,” Korman wrote.

Now, this is an interesting issue. Presumably, Plan B is “safe” for even young girls — otherwise, given the variation in physiology in the population, no company would risk selling it to 18-year-olds. So, the issue of where to draw the line is based, not on health concerns, but rather on social judgments of maturity and the ability to make independent decisions. In other words, a political judgment has to be made. Why shouldn’t the White House be involved? (And I say that with the opposition party currently in control and slated to be there for at least another 1367 days.)

As to the practicalities, 16 would seem to be the cut-off, since that’s the age where kids can get a driver’s license and therefore have official ID. Otherwise, you might as well just declare open season.

Incidentally, I believe Plan B ought to be available and am not sure that it, along with ordinary birth control pills, prenatal vitamins, and a whole host of other things that now require a prescription shouldn’t be available over the counter.   But the age at which minor children get access to things strikes me as a public policy decision that ought to be left to the political process rather than the courts.

FILED UNDER: General, ,
James Joyner
About James Joyner
James Joyner is a Security Studies professor at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Boyd says:

    My daughter was still 15 (15 1/2, I believe) when she got her Virginia learner’s permit. My older children got their licenses, admittedly under special circumstances, from the state of Tennessee at 14 years of age.

    But I get your point.

  2. James Joyner says:

    Alabama allowed it at 15 when I got my permit. It’s been a long time, so I don’t recall whether it was a photo ID or just a card.

  3. davod says:

    “Here’s the other weird thing: Ordinary birth control pills, designed to prevent pregnancy before the fact, still require a doctor’s prescription even for adults. By what logic is the federal government required by law to allow access to after-the-fact birth control to minors?”

    This is what I do not understand.

  4. alkali says:

    But the age at which minor children get access to things strikes me as a public policy decision that ought to be left to the political process rather than the courts.

    The decision was left to the political process, and it wasn’t made by the court.

    Congress authorized the FDA to approve or disapprove drugs for sale based on particular factors like demonstrated safety, efficacy, etc. Congress did not authorize the FDA to say, “Safe or unsafe, we don’t think morally upright 17-year-olds should be using Plan B, and so we won’t allow it.”

    Given that the FDA lacked that power, the Bush Administration could have gone back to the political process and proposed a bill regulating use of Plan B by 17-year-olds. They didn’t do that, for whatever reason.

    Instead, Bush appointed FDA commissioners who refused to follow the statutes that Congress had actually passed to govern the FDA. So someone sued the FDA to make it follow its governing statutes.

    This is not a case in which a judge arrogated to himself the powers of the FDA. This is a case in which a judge compelled the FDA to follow the statutes that Congress passed.

  5. Joey Buzz says:

    Endocrine disruptors in the Potomac likely from birth control components in waste water messing up fish…what will Plan B do to the fish?

  6. markm says:

    My daughter was still 15 (15 1/2, I believe) when she got her Virginia learner’s permit.

    …just read that as Vagina learner’s permit. I was about to ask some questions but will instead head to the coffee machine. Oye.

  7. Billy says:

    So, law school gives one sufficient expertise to understand that 17-year-old girls should be allowed unsupervised access to abortificants but not enough to be clear on the status of 16-year-olds?

    No, that very specific expertise springs from a Reagan appointment to the federal bench. Law school gives no sufficient expertise to understand anything.

    Here’s the other weird thing: Ordinary birth control pills, designed to prevent pregnancy before the fact, still require a doctor’s prescription even for adults. By what logic is the federal government required by law to allow access to after-the-fact birth control to minors?

    Presumably there are bona fide medical reasons for putting up the prescription barrier to birth control that do not exist where Plan B is concerned. However, if that’s not the case, it would hardly be the first time the FDA and DEA have plead “medicine” when they really mean “politics” (see marijuana prohibition).

  8. Joe says:

    Our political system is hopelessly broken. Why is it that the age of consent is still 18, but we can give after-the-fact birth control to 17 year-old girls and pass out condoms to junior high schoolers?

  9. Bithead says:

    The timing of this is interesting, given it smacks up against the case before the USSC about strip searching a 13 year old for asprin.

  10. Richard Gardner says:

    The age of consent is under 18 (16 or 17) in most states, with California being the notable exception. Other “18” states are AZ, ID, ND, OR, TN, VA, WI, so 8 states total.

  11. Bithead says:

    MarkM… You, too?

    Damn glasses, anyway.

  12. John Burgess says:

    I think this is more appropriately played at the state level. Each state, through its laws, defines the age of sexual consent. That age, whatever it happens to be, should be the age at which Plan-B is available, OTC.

    The one proviso is that there should be proof that Plan-B is medically safe at whatever those ages might be. I suspect that studies on girls younger than 17/18 haven’t actually been done yet, though.

  13. Alex Knapp says:

    What alkali said.

  14. Megan says:

    “So, law school gives one sufficient expertise to understand that 17-year-old girls should be allowed unsupervised access to abortificants but not enough to be clear on the status of 16-year-olds? That seems like a serious flaw in the curriculum!”

    Not to nitpick, but calling Plan B an abortifacient is not entirely accurate. It, like the birth control pill, works primarily by preventing ovulation. It is literally a megadose of the same hormones in birth control aimed at providing short-term alteration to the woman’s cycle to halt ovulation. Also like birth control, there exists the theoretical possibility that it prevents implantation (which is where the “abortifacient” label could be applicable). Studies are not conclusive, and even if this is the case, it is NOT Plan B’s primary mechanism of action. But you wouldn’t call the birth control pill an abortifacient, would you? It has the same hormones and the same possibility. I think some of the absurdity you see here is misplaced.

    The problem with allowing the political process to set the age at which Plan B is available is that it invariably will not consider what is best for women/girls; it will get caught up in issues like those above–does it cause an abortion? Does it not? Should we require parental consent?–and I’m inclined to believe that it will end up with a policy that will limit access to teens (ie, parental consent, setting the age cut-off higher, etc.). Let’s be honest–teens WILL have sex. Making them jump through hoops to get the tools they need to avoid pregnancy, STD’s, etc., is not going to change their behavior. I agree that 17 is an arbitrary cut- off, and 16 makes more sense (especially given that that is the age of consent in most states). But I don’t have faith in the political process to make that call; I suspect we’ll end up with a policy that severely restricts access or otherwise makes it difficult to obtain Plan B during its short time frame of efficacy (which is the main reason they made it over-the-counter).

  15. PD Shaw says:

    alkali makes a lot of sense to me too. It seems like the Bush administration was misusing the prescription drug laws.