The Night Before the Morning After:
Why Has the FDA Delayed Approval of Over-The-Counter Emergency Contraception?

By SHERRY F. COLB

Wednesday, Feb. 25, 2004

The Food and Drug Administration (FDA) recently announced a three-month delay in its planned decision on whether to approve the "morning-after pill" for over the counter (OTC) distribution. Those awaiting the FDA's decision -- originally scheduled for February -- will now remain in suspense until May.

A woman can take the morning-after pill (which also has various brand names) within 72 hours of unprotected or inadequately protected intercourse to prevent pregnancy from occurring. Estimates of the drug's efficacy range from 75 to 99 percent.

The FDA has denied that politics played any role in the delay. Nonetheless, the FDA has faced (and continues to face) pressure from conservative Republicans who say that OTC availability of the morning-after pill could be "disastrous" to teenagers.

Upon closer analysis, however, the arguments against the pill emerge as disingenuous attempts to impose an extremist, undesirable, religious agenda on America.

What Does Science Have to Say?:

The FDA drug Chief, Dr. Steven Galson, has asserted that the delay in an approval decision is "totally based on scientific issues and questions." These questions appear to involve the gathering of information about 16- and 17-year-olds who have used the morning-after pill.

The actual scientists on the FDA Advisory Committee, by contrast, have overwhelmingly endorsed prescriptionless sale of the pills, calling them a safe and important way to decrease the number of abortions. So what might account for the right-wing opposition?

Do Morning-After-Pills Encourage Unsafe Sex?

A group of conservative Republicans led by Representative Dave Weldon, R-Florida, argue that the ready availability of the morning-after pill will encourage people, especially teenagers, to engage in unsafe sex. It is, of course, a pleasant surprise to hear that conservative Republicans have joined their ideological adversaries in opposing unsafe sex among our youth. The "abstinence" programs that conservatives ordinarily promote fail to draw any such distinction and even, on occasion, imply, inaccurately, that condoms are useless in preventing the spread of HIV infection.

However, though admirable in its implied support for safer sex, the argument that an OTC morning-after pill will encourage unprotected sex has a crucial flaw: it makes no sense.

Almost by definition, a person who finds herself in need of emergency contraception did not plan to be in that situation. If she had, she would have either used birth control or asked her partner to do so.

If, on the other hand, she was either not thinking about the possibility of conception or did not consent to intercourse, then the unavailability of the morning-after pill would not appear to have made a difference in her behavior.

Familiar Myths about Contraception Ground Morning-After Pill Opposition

One striking aspect of the "morning-after pill encourages unsafe sex" argument is how similar it is to right-wing arguments about contraception generally. Opponents of condom distribution in schools, for example, say that it will motivate teenagers to have more sex.

Along related lines, Representative Weldon's coalition of conservative lawmakers has argued that it is inconsistent for the Bush administration to advocate sexual abstinence and then approve the morning-after pill. That claim, however, is flawed.

Presumably, even the current White House would permit married couples to engage in sexual intercourse. Given that permission, it follows that a married couple that forgets to use contraception, or whose method of contraception proves defective (for example, when a condom breaks), could find itself in need of the morning-after pill.

In addition, a woman who is raped, and thus had no abstinence option at her disposal, might wish with some urgency to minimize the chances that she will conceive and bear a child with her attacker's sperm.

OTC availability of the morning-after pill allows these two groups of people - who may be the very religious Christians whose life choices find approval among conservative Republicans - to go to a drug store and buy what they need, without having to try to schedule an appointment with a doctor within 72 hours of intercourse.

Similar Myths About Abortion Show the Same Flawed Logic

But what about those irresponsible teenagers? Isn't the FDA sacrificing the potential deterrent value of unwanted pregnancy on teenage sex?

That question corresponds to conservative arguments about how the morning-after pill might encourage teenagers to have unsafe sex. The implicit suggestion resembles the claims that are often made about women who have an abortion - that is, that they use it as a form of birth control. The idea is that women have sex without thinking about the consequences, because they know that they can always resort to abortion "on demand" if they happen to become pregnant.

It may be true that some people use abortion as their method of birth control, but the claim that such behavior is widespread seems more of a slur against women who have abortions than an accurate portrayal of what that choice might ordinarily signify.

In any event, however, the way in which the morning-after pill works simply does not permit the sort of "wait and see" attitude that supposedly animates women who rely on abortion to avoid having children. Any woman who actually had this attitude would not use the OTC morning-after pill.

Why not? Because there is no way for anyone to know within 72 hours of intercourse -- the time period within which the pill can be used -- whether a pregnancy will result.

All one knows about conception at that point was also known at the time of intercourse itself. Therefore, the person who will choose to purchase the morning-after pill is ordinarily going to be someone who would have used (or did use) birth control itself -- not abortion -- as a form of birth control.

The morning-after pill is accordingly not a means of terminating a discovered pregnancy that a woman did not bother to prevent.

How Does the Morning-after Pill Work?

Some people might wonder how a pill can prevent pregnancy after intercourse has already taken place. It may sound a bit like closing the barn door after the horse has escaped.

The morning-after pill works, however, by altering the hormone levels in a woman's bloodstream. If intercourse occurs before a woman ovulates, then sperm can remain viable inside the woman for several days, as if waiting for an egg to appear. While the sperm wait, the morning-after pill can prevent the woman's ovaries from releasing an egg. Without an egg, there can be no pregnancy.

If, on the other hand, a woman has already ovulated by the time of intercourse, the hormones can prevent the egg and sperm from uniting to form a zygote. Though a man releases about five hundred million sperm cells with each ejaculation, the odds of even one of those sperm cells fertilizing a woman's egg - even if she ovulates around that time - are relatively slim; hormone alterations can reduce those odds to close to zero.

Finally, if the egg and sperm have already formed a zygote before the woman ingests the morning-after pill, then the hormones that she takes can prevent her uterus from permitting implantation of the embryo, which medically defines pregnancy.

In each of these cases, then, the morning-after pill resembles other forms of birth control in that it prevents rather than terminates a pregnancy. Hostility to the morning-after pill therefore represents, in an important sense, opposition to contraception.

It is the people who use birth control who would ordinarily take advantage of the morning-after pill, and it is under circumstances in which they wish to avoid a future pregnancy that such people might choose to use it. It follows that people who would abstain from sex in the absence of the morning-after pill (assuming that such a group exists) would necessarily abstain in the absence of contraception.

And that equation - between contraception and the morning-after pill - takes us to the most plausible reading of current efforts to block OTC distribution of the morning-after pill. The morning-after pill is a kind of birth control, and opponents do not want people to have direct access to birth control.

More insidiously, however, the morning-after pill is the kind of birth control that people use only after they have already had sex. To deny a person access to the morning-after pill is thus to say - whether to an adult woman or to a frightened teenage girl - "you have made your bed; now lie in it."

When a person decides that she wants to take the morning-after pill, it is, in other words, too late to undo the fact of intercourse, no matter how ill-advised. Only one of the potential consequences might be avoided, and opponents wish to make that consequence (that is, unwanted pregnancy) more rather than less likely to occur.

Pregnancy as a Punishment for Sex?

If the morning-after pill does not encourage sex or make hypocrites of abstinence proponents, then why is the FDA (and those whose political views appear to drive most of our current administration's agencies) delaying its OTC availability?

The answer appears to be the view that pregnancies represent the divinely ordained punishment for sex. To allow a woman to take the morning-after pill (or to permit condom distribution) is to treat unwanted pregnancy and the spread of HIV and other sexually transmitted diseases as simply undesirable. But the moralizing minority may be somewhat ambivalent about that. What is undesirable from one perspective might be just deserts from another.

No matter how much most of us would like to discourage teenagers from having sex, and however much President Bush would like to discourage everyone other than married, heterosexual couples from having sex, we all recognize the reality that many people who fall outside the approved group will nonetheless have sex.

In refusing to stop unwanted pregnancy, then, at a stage at which even abortion opponents would have a difficult time crying "murder," those who oppose the morning-after pill and contraception in general declare their affinity for a view of pregnancies and sexually transmitted diseases as - at least in part - the rightful wages of sin.

This view is an intolerant, punitive, and extremist view that has no place in a democracy whose Constitution prohibits the government from establishing a state religion. It also has no place in a politics of compassion, conservative or otherwise.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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