1. Roe was too focused on doctors and didn’t talk enough about women.
“It’s about the doctor’s freedom to practice his profession as he thinks best. If you read the Roe opinion, you will never see the woman standing alone. It’s always the woman in consultation with her physician.”
Ginsburg believes that the Roe ruling would have been stronger if it hadn’t involved the distinction that abortion is a decision left up to the woman and her doctor. (The opinion itself states that ”the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.”) She elaborates:
“It’s about a doctor’s freedom to practice his profession as he thinks best. It wasn’t woman-centered. It was physician-centered.”
2. The ruling should have left room for individual states to make their own decisions.
“It’s not that the judgment was wrong, but it moved too far too fast,” Ginsburg said at the Columbia Journalism School last year:
“The court made a decision that made every abortion law in the country invalid, even the most liberal. We’ll never know whether I’m right or wrong … things might have turned out differently if the court had been more restrained.”
Ginsburg believes that the Justices should have passed a ruling that would have just struck down the Texas-specific ruling. As her moderator at the University of Chicago talk Geoffrey Stone explains, “By instead reaching out to decide the much more broader question – whetherany prohibition of abortion is constitutionally permissible in the first twenty-four weeks – the Court, in her view, short-circuited the democratic process and failed to allow the states to work out for themselves how best to regulate abortion.”
3. “A woman’s right to choose” should have been protected with a different court case.
According to Ginsburg, there was a case that was a better fit for setting a standard for reproductive freedoms than Roe. 1971′s Struck v. Secretary of Defense involved a female U.S. Air Force Captain who was in Vietnam when she became pregnant, something that, according to Air Force Regulation, made her ineligible for military work. At the time, Ginsburg was not yet a member of the Supreme Court and was representing Struck. Though the case was never heard – and the Air Force rules were changed – she wrote an interesting merits brief about the case:
“The central question raised in this case is whether the Air Force, consistent with the equal protection principle inherent in the due process clause of the fifth amendment, may call for immediate discharge of pregnant women officers…It is petitioner’s position that this distinction reflects arbitrary notions of woman’s place wholly at odds with contemporary legislative and judicial recognition that individual potential must not be restrained, nor equal opportunity limited, by law-sanctioned stereotypical prejudgments. Captain Struck seeks no favors or special protection. She simply asks to be judged on the basis of her individual capacities and qualifications, and not on the basis of characteristics assumed to typify pregnant women.”
Since then, Ginsburg has explained her thoughts more succintly (and with less legalese):
“The idea was: ‘Government, stay out of this.’ I wish that would have been the first case. The court would have better understood this is a question of a woman’s choice.”
4. It wasn’t the right time.
“The court can put its stamp of approval on the side of change and let that change develop in the political process,” Ginsburg says now of Roe v. Wade – leading some to speculate that it’s possible she’s going to be hesitant to pass anything broad-sweeping when it comes to marriage equality rulings.
5. It gave the pro-life movement something to attack.
“The sweep and detail of the opinion stimulated the mobilization of a right-to-life movement and an attendant reaction reaction in Congress and state legislatures. In place of the trend ‘toward liberalization of abortion statutes’ noted in Roe, legislatures adopted measures aimed at minimizing the impact of the 1973 rulings, including notification and consent requirements, prescriptions for the protection of fetal life, and bans on public expenditures for poor women’s abortions.”
“What a great organizing tool it is: You have a name, a symbol—Roe v. Wade.You could aim at [the fact] that this decision was made not in the ordinary democratic process.”
Ruth on Roe = the end = maybe no one will ever talk about abortion again?
President Obama recently reassured women’s rights advocates: “As long as . . . we’ve got to fight to protect a woman’s right to make her own choices about her own health, I want you to know that you’ve got a president who’s going to be right there with you.” Right now, he seems to be in both corners of the ring.
In this corner
Under federal court order the Food and Drug Administration (FDA) was to make Plan B™ available over the counter without age or prescription restriction by May 10th. (Plan B™ is a pill taken as soon as possible and up to 120 hours after unprotected sex to prevent a pregnancy.)
The FDA had determined Plan B ™ to be safe over the counter (OTC) for all girls and women at risk of unwanted pregnancy. In what appears to be an attempt to evade the court order, the Whitehouse engineered an FDA compromise requiring women to show identification and proof of age (15) before they can purchase Plan B™.
Judge Edward Korman sharply denied the Department of Justice (DOJ) request for a stay of his order. He said that the DOJ’s arguments on EC contradict the FDA’s own recommendations and he pointed out the administration’s inconsistency in its positions that requirements for photo IDs are unconstitutional barriers to voting rights, but photo IDs are acceptable for women who need to exercise their reproductive rights.
And in this corner
Meanwhile, half the country away in Denver, the DOJ is defending policy that health insurance should include preventive coverage, including hormonal contraceptives and emergency contraception, without copays or deductibles. Consistent with President Obama’s 2009 directive that political officials should not influence scientific findings and conclusions, he commissioned the National Institute of Medicine (IOM) to make recommendations on prevention for women’s health. In stark contrast to the Plan B ™ FDA case, the President implemented the IOM recommendations and is vigorously defending policies to give women access to EC and other contraceptives against secular corporations such as Hobby Lobby which are claiming a religious exemption so they can deny employees reproductive health coverage guaranteed to others.
When the DOJ asserted “public interest” to Judge Korman, he invited them to explain what public interest is served by unplanned pregnancies and abortions. That is the standard by which this dispute should be decided. No public interest is served by unplanned pregnancies. Which policy best prevents them?
- Unwanted pregnancies – like unplanned and involuntary sex — are more likely to occur to teens, to present higher medical risks, and are more likely to be terminated.
- Judge Korman’s comparison between reproductive rights and voting rights is important because pregnant teens and low-income minorities have the fewest resources to overcome obstacles placed in their way. Those same women and girls also have the greatest difficulty overcoming the health and social consequences of an unplanned pregnancy.
- For almost ten years, FPHS has dispensed 10,000 cycles of EC to our patients — quickly, confidentially, and at low or no cost. We have seen our unplanned pregnancy rate drop. We have identified the greatest obstacles to effective emergency contraceptive use are cost and a lack of accurate knowledge about how it works and when to take it. OTC status is an inadequate and imperfect solution, but adding unnecessary photo ID requirements only amplifies its imperfections.
The Obama administration’s now repeated politicization of the EC issue, in contrast to the Obama administration’s defense of contraceptive coverage in primary care, adds to the stigma and enables the opponents of contraception in their efforts to misinform.
It is unclear in its fight against itself, what the Whitehouse will win, but in the fight to prevent unplanned pregnancies and abortions, it is too clear what women and girls might lose.
The US Food and Drug Administration announced that it would AGAIN go against the courts ruling, and limit the access to Plan B emergency contraception to people ages 15 and up, with proper ID shown at check out. Judge Edward R. Korman, of the U. S. District Court for the Eastern District of New York ruled in Tummino v. Hamburg, that Emergency Contraception (EC) “should be available without a prescription for any age or point-of-sale restrictions within 30 days”.
The legal battle surrounding Plan B has gone on for over a decade, and extended through two Presidencies. Judge Korman’s ruling was issued in response to the Center for Reproductive Rights’ (CRR) renewed lawsuit against the FDA seeking to expand over-the-counter access for all women to all brands of the morning-after pill, including Plan B One-Step and Next Choice. The CRR again filed suit against the FDA when Kathleen Sebelius, secretary of the Department of Health and Human Services, overruled a 2011 FDA decision to make emergency contraception available over-the-counter to all ages.
Lon Newman, Executive Director of Family Planning Health Services, Inc states, “Young teenagers are most at risk of rape and most likely to engage in unplanned unprotected sex. They are also most likely to be afraid to purchase emergency contraception when they have to show identification and they are least likely to have it.
FPHS will continue our efforts to make EC quickly and confidentially available to teens and adults who want to prevent a pregnancy. We will also continue to support health care policy based on medical science and evidence and not on politics or ideology . . . apparently, in this case, that will be contrary to the White House’s position.
The primary obstacles to emergency contraception are lack of knowledge and cost. Neither of those obstacles are changed because of over-the-counter status. However, the Obama administration’s now repeated politicization of this issue for insupportable reasons, only adds to the stigma and misunderstandings surrounding this safe and vital service that safely reduces pregnancies and prevents abortions.”
The Food and Drug Administration said Tuesday that it would make the most widely known morning-after pill available without a prescription to girls and women ages 15 and older, and also make the pill available on drugstore shelves, instead of keeping it locked up behind pharmacy counters.
Until this decision the pill, Plan B One-Step, which is used after sexual intercourse to help prevent pregnancy, was available without a prescription only for ages 17 and older.
The decision did not address a federal judge’s ruling in early April that gave the drug agency 30 days to make the pill available for all ages without a prescription. In a scathing opinion handed down three weeks ago, Judge Edward R. Korman in the Eastern District of New York said the Obama administration had put politics before science in restricting access to the drug.
The F.D.A. and the White House said Tuesday that the Department of Justice was still deciding whether to appeal the ruling, something it can do independently of the drug agency’s decision on Tuesday.
That decision, which takes effect immediately, represents a compromise on the politically charged issue of access to emergency contraception, which has pitted conservative and anti-abortion groups against advocates for women’s health and reproductive rights.
The Justice Department is most likely weighing not only the substance of the judge’s ruling, but also the precedent the ruling would set in countermanding an order by a White House cabinet member, Kathleen Sebelius, the secretary of health and human services. In 2011, she decided the pill would be available without prescription only to those 17 and older, despite the F.D.A.’s finding that it was safe and effective and should be available without any age restrictions. She said the pill had not been studied for safety in girls as young as 11. It was the first time the F.D.A. had been publicly overruled by a cabinet secretary.
After her order, the pill’s manufacturer submitted an amended application seeking access for 15-year-olds. On Tuesday, a Health and Human Services Department official said that Ms. Sebelius was comfortable with the F.D.A.’s decision to approve that application.
Besides lowering the age restriction, the new rule addresses concerns of women who were unable to get the pill if their drugstore’s pharmacy counter happened to be closed. Now, Plan B One-Step will be available in drugstore aisles where family planning or women’s health products are displayed.
The packaging will include a product code that, when scanned by a cashier, will indicate that the customer’s proof of age is required. To try to prevent theft, the manufacturer, Teva Pharmaceuticals, has arranged for each box to have a security tag, the drug agency said.
Margaret A. Hamburg, the F.D.A. commissioner, said in a statement that data proved that 15-year-olds “were able to understand how Plan B One-Step works, how to use it properly, and that it does not prevent the transmission of a sexually transmitted disease.”
The agency’s decision applies only to Plan B One-Step, which is a one-pill dose, not to the two-pill generic versions, because there is not enough data to show the two-dose versions can be used responsibly by younger teenagers without the intervention of a health provider, said an F.D.A. spokeswoman, Erica Jefferson.
Marty Berndt, a vice president and general manager for Teva, called the agency’s decision “a significant milestone for women.”
But it did not completely satisfy either side of the emergency contraception debate. Anna Higgins, the director of the Center for Human Dignity at the Family Research Council, accused the administration of trying to “placate both sides,” adding that “allowing this to young teens will be something that we will remain very concerned about.”
Cecile Richards, president of Planned Parenthood, called the decision “an important step forward” because it “will eliminate some of the biggest barriers and hurdles that women face in getting emergency contraception.”
But Nancy Northup, president of the Center for Reproductive Rights, which filed the lawsuit that Judge Korman ruled on, said the decision on Tuesday was unsatisfactory.
“We will continue our battle in court to remove these arbitrary restrictions on emergency contraception for all women,” she said.
Today, in a proposal that can best be described as adding insult to injury, the Food and Drug Administration (FDA) approved making emergency contraception (EC) available over-the-counter for teens and women ages 15 and up. This convoluted proposal from the Obama administration comes despite a court order in early April by U.S. District Court Judge Edward R. Korman to make EC available over-the-counter to all ages within 30 days of his decision. It comes from an administration which pledged to make science the cornerstone of public policy and instead has consistently flouted a wealth of accumulated evidence on emergency contraception. It also comes after several studies showing that current policy requiring prescriptions for some groups and not others has confused so many pharmacists that access to EC has been denied to many who were in fact legally eligible to obtain it quickly. In practice, the new policy will almost certainly perpetuate, not resolve, that confusion.
The battle to make EC available over-the-counter has gone on for over a decade and spanned both the Bush and Obama administrations. Judge Korman’s ruling was issued in response to the Center for Reproductive Rights’ (CRR) renewed lawsuit against the FDA seeking to expand over-the-counter access for all women to all brands of the morning-after pill, including Plan B One-Step and Next Choice. The most recent CRR lawsuit was filed after Kathleen Sebelius, secretary of the Department of Health and Human Services,overruled a 2011 FDA decision to make emergency contraception available over-the-counter to all ages, underscoring that the Obama administration, like its predecessor, has difficulties dealing with the realities of sex and pregnancy prevention.
The administration’s newest plan is to make EC available over-the-counter to individuals ages 15 and up, but still require prescriptions for those under age 15. While pharmacies can stock it in the family planning section of main store shelves, people seeking to buy EC will have to show identification with a birth date to a cashier. The newest plan comes after approval this week by the FDA of an amended application submitted by Teva, the manufacturer of Plan B One-Step, to allow OTC sale to those ages 15 and over, after an earlier request to do so had been denied by FDA in December 2011. The amended application was in any case superceded by the scientific evidence that led the FDA to rule in 2011 on making emergency contraception available OTC to all ages, the decision that was, as noted above, subsequently overturned by Sebelius. So in using the approved Teva application as the reason for this newest decision, the FDA is essentially reversing itself and ignoring the science on which its 2011 decision was based. Confused yet? Me too. It’s a complete circus, and I have no doubt that leadership at the FDA, which tried to make evidence-based policy in 2011, came under pressure from the White House to find the “fix” it announced today.
According to the FDA press release:
The product will now be labeled “not for sale to those under 15 years of age *proof of age required* not for sale where age cannot be verified.” Plan B One-Step will be packaged with a product code prompting a cashier to request and verify the customer’s age. A customer who cannot provide age verification will not be able to purchase the product. In addition, Teva has arranged to have a security tag placed on all product cartons to prevent theft.
In addition, Teva will make the product available in retail outlets with an onsite pharmacy, where it generally, will be available in the family planning or female health aisles. The product will be available for sale during the retailer’s normal operating hours whether the pharmacy is open or not.
NPR reported that “the FDA said … Plan B One-Step will be packaged with a product code that prompts the cashier to verify a customer’s age. Anyone who can’t provide such proof as a driver’s license, birth certificate or passport wouldn’t be allowed to complete the purchase. In most states, driver’s licenses, the most common form of identification, are issued at age 16.”
There are several serious problems with this approach, apart from the fact that it ignores scientific and medical findings that call unequivocally for over-the-counter access for all.
First, the policy is not in compliance with the court ruling and therefore may in fact be thrown out. The Department of Justice will have to bring it before Judge Korman for approval and potentially seek a stay of his ruling altogether, throwing EC once again back to the courts.
Second, it still requires a prescription for a subset of the population potentially in need of EC, and therefore creates a significant barrier, especially for low-income teens under 15 years of age or those without ID who “look” younger and are denied access. Emergency contraception is for emergencies. It prevents unintended pregnancy by preventing ovulation, and is therefore most effective when taken within 72 hours of unprotected intercourse (including in cases when another contraceptive method may have failed). The need to see a physician to obtain a prescription that the public health and medical communities have deemed unnecessary is both time-consuming and expensive, and will entail additional indirect costs in terms of loss of time at school and work, likely on the part of both teens and their parents. This requirement serves the interests of no one except anti-choice opponents of birth control, and those in the Obama administration who still seem unable or unwilling to think beyond their own fears of teens and sex, or to go beyond personalizing policy to accommodate their own paternalistic fears of their daughters as sexual beings.
Third, language, lack of identification, and other potential barriers will remain an obstacle for many communities. Many 15- and 16-year-olds do not have IDs that display birth dates, and those who are well above the age limit but “look younger” to a clerk will be required to produce identification, documentation that many people in this country still do not have readily available or that, in a hurry, some might not remember to bring with them to the store.
Latinas, for example, face many of these barriers to access. In reaction to the decision, Jessica González-Rojas, executive director of the National Latina Institute for Reproductive Health, stated:
For too long, this important backup birth control method has been kept out of reach. Immigrant women and aspiring citizens of all ages have been hit particularly hard, since they are less likely to have government-issued identification. Putting emergency contraception on store shelves is a step in the right direction, but this decision still means another unneeded barrier for many Latinas who need contraception. Latinas already face far too many barriers, like poverty, discrimination and language, which prevent Latinas from accessing care.
For Latinas in particular, expanded access to emergency contraception is critical for making the best decisions for our families and ourselves. It’s disappointing that the FDA decided to undermine the recent court victory for immigrant women and young Latinas by introducing more unnecessary obstacles to emergency contraception, which is safe and necessary.
In a press release, Nancy Northup, president and CEO of the Center for Reproductive Rights, also pointed to the barriers to access left unaddressed by the policy:
The FDA is under a federal court order that makes it crystal clear that emergency contraception must be made available over the counter, without restriction to women of all ages by next Monday.
Lowering the age restriction to 15 for over-the-counter access to Plan B One-Step may reduce delays for some young women—but it does nothing to address the significant barriers that far too many women of all ages will still find if they arrive at the drugstore without identification or after the pharmacy gates have been closed for the night or weekend.
These are daunting and sometimes insurmountable hoops women are forced to jump through in time-sensitive circumstances, and we will continue our battle in court to remove these arbitrary restrictions on emergency contraception for all women.
It seems these days that no matter the administration in power, ensuring women have access to basic reproductive health care remains fraught with bias and mismanagement. On one hand, after going to ridiculous lengths to placate the United States Conference of Catholic Bishops (USCCB) on something as basic as including coverage for contraception under health insurance, the administration is fighting the USCCB and others in court over a policy to which the litigants are not even subject because these religious groups so hate the idea of women accessing contraception they are willing to empty collection plates to pay for court battles. On the other, advocates are now fighting the same administration in court on access to EC. And meanwhile, many pharmacies and pharmacists refuse to stock or dispense EC, no matter what, claiming personal religious objections.
The only thing that is clear is that the last chapter of this fight has yet to be written. Janet Crepps, a senior counsel for the Center for Reproductive Rights, told NPR Tuesday night that absent a stay, “we will want to go back to court as quickly as possible and ask the judge to hold them in contempt.”
So teens of any age can now buy prescription-strength drugs such as cough syrup and cold medicine over-the-counter without a prescription, but still cannot buy without hassles and barriers a drug that has been found to be safer than a wide array of other OTC drugs, and which has a small window of usefulness. I guess this administration would rather play Russian Roulette with teen pregnancy than make it easier to prevent.