Last week, the U.S. Food and Drug Administration (FDA) recommended approving over-the-counter (OTC) sale of Plan B One-Step emergency contraception (the “morning after pill”) to any girl of reproductive age. After reviewing the FDA’s recommendation, however, the Secretary of the U.S. Department of Health and Human Services (HHS), Kathleen Sebelius, overruled the recommendation and directed the FDA to deny the manufacturer’s application to expand OTC availability of the drug. In this column, I will consider and evaluate the main arguments that Secretary Sebelius and others have offered for continuing to require girls under seventeen to obtain a prescription before being able to purchase the morning after pill.
What Is the Morning After Pill?
The morning after pill is a pregnancy-prevention drug that a woman or girl can take up to three days after she has had sexual intercourse. The drug contains a hormone that can help avoid pregnancy in one of three ways: (1) by delaying or preventing a woman from ovulating; (2) by blocking fertilization if ovulation has already occurred; or (3) by preventing implantation of a fertilized egg in the woman’s uterus, once ovulation and fertilization have already taken place.
When used as directed, the drug reduces the rate of pregnancy by half. With a fertile woman’s chances of becoming pregnant after sex estimated at approximately one in twenty, the pill would thus bring the odds down to one in forty.
Young Girls’ Brains Are Different From Those of Older Girls and Women
In defending her decision to overrule the FDA’s recommendation, Secretary Sebelius issued a statement asserting that “[i]t is common knowledge that there are significant cognitive and behavioral differences between older adolescent girls and the youngest girls of reproductive age.” While acknowledging that “[t]he science has confirmed the drug to be safe and effective with appropriate use,” she cautioned that “[t]he switch from prescription to over the counter for this product requires that we have enough evidence to show that those who use this medicine can understand the label and use the product appropriately.”
It may seem that a pregnant girl who can find her way to a drugstore and ask for the morning after pill is capable of following an instruction to swallow one pill within three days of intercourse. Yet the Secretary’s more general assertion about cognitive and behavioral differences between younger and older adolescents is accurate. Research suggests that children lack the capacity to deliberate and exercise judgment that older adolescents and adults have. (Indeed, I discussed such age-related differences in an earlier column analyzing the constitutionality of sentencing fourteen-year-old murderers to life imprisonment without the possibility of parole.)
It does not, however, follow from the unremarkable fact that young people are immature that we ought therefore to require them to produce a prescription before purchasing the morning after pill.
To understand why mandating prescriptions may not be a wise response to immaturity, consider the hypothetical case of a twelve-year-old girl I will call Emily. Because she is only partway through her development, Emily, like other girls her age, lacks the cognitive and emotional capacities of an older adolescent.
Imagine, now, that Emily walks into a pharmacy and tries to buy the morning after pill over the counter. The pharmacist, Christopher, tells her that he cannot sell her the pill without a prescription. Emily responds that she does not have a prescription but that she still needs the pill. Christopher advises Emily to ask her mom to take her to the doctor to get a prescription. Emily, looking glum, leaves the pharmacy without the pill.
What would an average twelve-year-old like Emily do now? If Emily saw fit to go into a pharmacy alone to buy emergency contraception, it seems likely that she wants to keep her sexual activity a secret from her mom. And if she is like many immature twelve-year-olds, then after facing an obstacle at the pharmacy, Emily will put the entire matter out of her mind, perhaps buy a candy bar, and hope for the best.
Emily and other girls her age, due to their immaturity, regularly make choices that undervalue long-term consequences. They may, for instance, routinely leave their homework untouched until the night before it is due. Emily, too, may not yet be a skilled problem-solver and may opt for procrastination over planning much of the time. For similar reasons, Emily might have waited until the last minute to venture into the pharmacy for the morning after pill, in which case there would no longer be time for Emily’s mom to set up a doctor’s appointment and obtain a prescription before the three days during which emergency contraception is effective have passed.
Ideally, of course, Emily would not be having sex at all. And, if she were having sex – either because she and another adolescent made an impulsive mistake together, or because an older person molested or raped her – she would ideally go directly to one of her parents and/or to a doctor to talk about what happened. If Emily did what we wished, the prescription requirement would pose no obstacle for her. Emily would have talked with her mother and a doctor right away and would be able to get the prescription that she needs. Problem solved.
But we do not live in an ideal world. To cite an analogy from the abortion area, a majority of the U.S. Supreme Court observed in Planned Parenthood v. Casey that we evaluate a legal requirement by assessing “its impact on those whose conduct it affects . . . . [W]e would not say that a law which requires a newspaper to print a candidate’s reply to an unfavorable editorial is valid on its face because most newspapers would adopt the policy even absent the law . . . . The proper focus of . . . inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.”
In our hypothetical scenario, the ideal Emily would belong to the group for whom the prescription requirement is irrelevant. Most twelve-year-old girls (and boys, for that matter) are virgins and will probably remain virgins at least until they are old enough to buy emergency contraception over the counter. They will therefore not need the morning after pill, whether by prescription or OTC. Ideally, Emily would be one of those adolescents.
The real Emily, however—the one whose situation is relevant to our inquiry—may not belong to this ideal group. She, like numerous other girls under seventeen—indeed, well under seventeen—may be having sex. Among low-income families, for example, the age at first intercourse as of 2009 was reportedly 12.77. For those twelve-year-olds, the ones who are sexually active and who will not approach their mothers (or fathers) or a doctor in time, the prescription requirement poses a major, potentially insurmountable obstacle to their ability to obtain emergency contraception.
Parents Have Interests, Too
Some readers might be thinking that my discussion of Emily and her needs and interests overlooks the needs and interests of another set of rights-holders, namely, the girl’s parents. Even if Emily would prefer to buy emergency contraception behind her parents’ backs, her mother and father could be opposed to her having this option.
Emily’s parents’ views matter, because parents have a constitutional right to decide how to go about raising their children, and they might not like the idea of their daughter buying emergency contraception without first having to consult either them or a medical professional.
Emily’s parents might worry about the side effects of Plan B One-Step (listed by the manufacturer here) and could question Emily’s ability to fully appreciate and balance the risks of drug side effects against the relative risk of pregnancy without the drug.
In addition to their concerns about side effects and the need for an informed and mature cost/benefit analysis, Emily’s mother and father may view the OTC option as allowing what is at best self-destructive, high-risk behavior, and what is at worst child sexual abuse, to go undetected. With the law requiring a prescription, Emily’s parents could learn that their daughter is sexually active and then intervene to protect her from herself or from the predator who may be molesting her. Emily would appear to have no choice, if she wants the prescription, but to bring a responsible adult into the picture.
This set of arguments will appeal to many parents. I admit that as a mother, I feel discomfort at the prospect of my children making important decisions about their bodies without my knowledge or input. President Obama may have experienced similar discomfort when he reportedly said that he supported Secretary Sebelius’s decision, “as the father of two daughters.”
Once again, however, it is useful to consider the likely impact of the prescription requirement in the real world. Emily can in fact choose between at least two alternatives when she leaves the pharmacy empty-handed. She can go to her parents and/or her doctor and thereby permit responsible adults to intervene and protect her interests. Or she can just walk away, an option that may seem more attractive to her than sharing embarrassing information with her mother or father. If Emily is alienated from her parents and/or society, as many young adolescents are, moreover, she might even feel defiant and angry in the face of what sounds to her like an order to involve adults in her private crisis. “I’ll just wait and see what happens! That’ll teach them!” could be going through her mind.
One of two outcomes would follow a decision to wait and see. Emily might not become pregnant (odds strongly favor that outcome in the individual case), and then she might—perhaps disastrously—conclude that she can have unprotected sex again without worrying, because she didn’t actually need contraception this time. Children are especially prone to believing that if nothing bad happened on this occasion, then their actions may not be that risky after all.
If Emily had instead been able to take the morning after pill, she might have felt the weight of her actions and their potential consequences and might have chosen, on her own, to talk with her parents or another adult about her situation.
Another possible outcome is that Emily does become pregnant. In that case, unless she miscarries, she will now have to choose between two options: having a baby, and having an abortion (maybe even a late-term abortion, given the young girl’s possible penchant for procrastination). Neither of these options is as simple, from the perspective of the girl’s health or the potential impact of her decision on her own and others’ lives, as taking emergency contraception would have been.
Trying to force a young girl to tell her parents or a doctor that she is sexually active can, accordingly, backfire spectacularly, whether or not she becomes pregnant. This is why even a father of two daughters such as President Obama might choose to support the OTC option, as much as he hopes that his daughters will neither need nor want to exercise that option.
Another Argument Against OTC Emergency Contraception: It May Be A Kind of Abortion
The last argument leveled against OTC emergency contraception brings to light a divide between medical professionals and the pro-life movement on how to define “pregnancy” and “abortion.” Doctors usually define pregnancy as occurring when a pre-embryo implants in the wall of a woman’s uterus. That is when the embryo (and later, the placenta) begins producing human chorionic gonadotropin (hCG), the hormone that triggers a positive result on a home pregnancy test. From this definition of pregnancy, it follows that an abortion—the early termination of a pregnancy—can occur only after implantation. Intervening in the process prior to this point thus falls into the category of birth control rather than abortion.
Because Plan B One-Step no longer works once embryonic implantation has occurred, it is necessarily a form of birth control, under this first definition of pregnancy, not a drug that induces abortion (an abortifacient).
The pro-life movement, by contrast, defines a pregnancy as beginning at the moment of fertilization. On this definition, an abortion can occur at any time after a sperm cell has fertilized an egg cell. Plan B One-Step can work by preventing ovulation or fertilization, both of which would qualify the drug as birth control under both of the competing definitions of pregnancy.
If fertilization does occur, however, Plan B One-Step can still work, by preventing implantation and thereby ending the life of a fertilized egg, thus terminating what the pro-life movement views as an extant pregnancy. In such cases, Plan B One-Step induces what the pro-life movement understands as a very early abortion. For this reason, the pro-life movement sees OTC availability of emergency contraception as facilitating access to abortion.
Some readers may be wondering why this semantic dispute matters. The facts about how the morning after pill works remain the same, whether we characterize the drug as pure birth control or whether we characterize it as a multi-function pharmaceutical that sometimes causes a very early abortion. Either way, the FDA has approved the drug as safe and effective. And either way, the drug is currently legal and available to women and girls.
The only question before the FDA was whether or not girls under seventeen will be able to purchase the drug without a prescription. The answer to that question does not have any obvious connection to the separate issue of whether preventing implantation is better characterized as “birth control” or as “abortion.”
Despite the logical disconnect between the definition of abortion and the OTC question, however, the dispute over the definition of abortion may nonetheless have played an important role in motivating Secretary Sebelius’s decision to overrule the FDA. Is she pro-life? I tend to doubt it. But an election is coming up, and she may be hoping to spare President Obama a Republican sound bite that accuses him of approving “over the counter abortions for American twelve-year-olds.”
If that calculation was indeed part of the thinking that led to Secretary Sebelius’s decision, I am doubly disappointed. First, for the reasons discussed above, I believe that the Secretary of HHS has inflicted a harm on vulnerable young girls by directing the FDA to deny girls under seventeen OTC availability of the morning after pill. And second, I expect that the decision will have no measurable impact on President Obama’s 2012 bid for reelection. Only young girls too young to vote will feel the impact of this decision. And to sacrifice their interests to appeal to voters who would not have supported Obama anyway blends cynicism and futility in a toxic mix.
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