The confusing story of emergency contraception access

As many of you may have heard, the world of emergency contraception (EC) access is getting rather complicated. We’re going to do our best to break it down for you. Hold on to your hats, campers.

In the beginning, the Food and Drug Administration (FDA) made a recommendation that emergency contraceptives should be sold over the counter, without restrictions. But then the Secretary of Health and Human Services Kathleen Sebelius overturned that recommendation (something that had never been done before), retracting the FDA’s support of universal access to EC.

Then along came Judge Edward R. Korman (he’s awesome) who made a ruling in April that all emergency contraceptives should be available over-the-counter, without restrictions – just like the original recommendation from the FDA.

He said let there be access, and it was good. But the FDA no longer supported the unrestricted access.

So then the FDA, under the orders of the administration, appealed the decision by Judge Korman, and the issue was sent to the next level of the courts, the 2nd U.S. Circuit Court of Appeals.

For simplicity’s sake, let’s review the progression so far (yay flow chart):

FDA recommendation –> Secretary Sebelius overturns FDA recommendation –> Judge Korman ruling –> FDA appeals Judge Korman’s ruling –> issue sent to 2nd U.S. Court of Appeals

So that’s how the issue of emergency contraception access ended up at the 2nd U.S. Court of Appeals.

Now this past Wednesday, the 2nd U.S. Circuit Court of Appeals in Manhattan made a ruling on some forms of emergency contraceptives, determining that they be available over the counter immediately and without restrictions.

So that’s the good news – but unfortunately, it gets further complicated from there.

Seriously, prepare to be confused.

Amid the ongoing drama from the FDA, Secretary Sebelius and the courts, the current status of emergency contraceptives access is as follows:

The 2nd Circuit Court of Appeals has permitted two-pill versions of emergency contraception to be sold over the counter, without restrictions. That includes the original Plan B and any generic two-pill forms of contraception.

Now, as for Plan B One Step, which mirrors the effects of the original two-pill Plan B except in a convenient one-pill dosage, it still remains in the limbo of the appeals court and remains available only for women ages 15 and older who can prove their age with an official form of ID. Which is problematic, since many states don’t issue learner’s permits or driver’s licenses until age 16. So they’re asking for forms of ID that many young girls won’t have access to, making it so they then can’t access the emergency contraception.

Every other generic form of emergency contraception that involves only one pill is available over the counter to women 17 and older who can prove their age with an official form of ID.

It is yet unclear why the different pill forms have been distinguished from each other, since they offer the exact same result, just in fewer steps. Although, obviously simplicity in access is not an underlying goal here.

In summary, as of Wednesday emergency contraception access is as follows:

Form of Emergency Contraception

Number of Pills


ID Required?

Plan B








Plan B One Step

ages 15 and older



ages 17 and older


BUT the federal administration (cough, Secretary Sebelius, cough) has two weeks from yesterday to  decide whether it will appeal the two-pill ruling (keep in mind that they are still currently in the appeals process for the one-pill forms). If the FDA does additionally appeal the two-pill ruling then it will go to either a full review by the 2nd Circuit Court or directly to the Supreme Court.

Of course, in South Dakota all of this could make no difference if your pharmacist refuses to distribute emergency contraception, which they can do under current state law.

For help dealing with that, look for a copy of our recently updated Emergency Contraception Pamphlet for information on which pharmacies do carry emergency contraception in the state. Or request one by emailing us at


Find more information on the ongoing emergency contraception drama here: from Mother Jones or from Huffington Post.

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