A federal judge in New York City said Tuesday he is willing to hear arguments over whether the Food and Drug Administration should have to allow the over-the-counter sale of emergency contraception to girls younger than 17.
Judge Edward Korman told the Center for Reproductive Rights to file the appropriate legal motions during a hearing on whether the government acted constitutionally in its decisions over the access teenage girls should have to morning-after pills.
The hearing came just a week after Health and Human Services Secretary Kathleen Sebelius overruled scientists at the Food and Drug Administration and announced that the pills would only be available without prescription to those 17 and older who can prove their age. President Barack Obama said he supported the decision regarding a pill that can prevent pregnancy if taken soon enough after unprotected sex.
The Center for Reproductive Rights and other groups have argued that contraceptives are being held to a different and non-scientific standard than other drugs and that politics has played a role in decision making. Social conservatives have said the pill is tantamount to abortion.
Korman was highly critical of the government's handling of the issue when he ordered the FDA two years ago to let 17-year-olds obtain the medication. At the time, he accused the government of letting "political considerations, delays and implausible justifications for decision-making" cloud the approval process.
On Tuesday, he said "it seems to me like we're going through a re-run."
In deciding to limit the over-the-counter availability of the drug, Sebelius said she had concluded that the data submitted for the pill did not establish that prescription dispensing requirements should be eliminated for all ages.
She said the studies submitted to the government did not include data on all ages.
"Yet, it is commonly understood that there are significant cognitive and behavioral differences between older adolescent girls and the youngest girls of reproductive age, which I believe are relevant to making this determination as to non-prescription availability of this product for all ages," she said.
Korman repeatedly questioned the lawyer for the government on whether the study data included information on girls older than the youngest girls of reproductive age but younger than the 17-year-olds currently able to get the pill, and whether they would be able to understand the pill instructions and use it properly.
Assistant U.S. Attorney Scott Landau said he couldn't answer that question, both because it was proprietary information and because the issue hadn't actually been raised for the court to rule on.