Obama Abandons Birth Control Fight, One Less Distraction

PHOTO: Packaged Plan B contraceptives, April 5, 2013, in Chicago.Scott Olson/Getty Images
Packaged Plan B contraceptives, April 5, 2013, in Chicago.

The Obama administration has reversed itself by agreeing to allow emergency contraception to be sold over the counter to anyone, abandoning a potentially damaging fight with the president's own base over the issue.

It is one less political battle amid a tumultuous second term for President Obama, which has featured an unrelenting stream of scandals: Justice Department's digging into journalists' phone records, the Internal Revenue Service's targeting of conservative groups and now a serious of leaks of secret national intelligence programs.

By bowing out early on this fight, the administration decided against pursuing the case that could have gone all the way to the Supreme Court, effectively raising its profile as a political problem for the president.

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The tipping point came last week, when a Circuit Court ruled partly in the administration's favor, and partly against it, by ordering a two-step version of the morning-after pill to be sold over the counter to women of all ages, and temporarily holding up the sale of the one-step version of the pill.

The ruling wasn't exactly what the administration or women's advocacy groups had hoped for, but it virtually guaranteed that litigation would continue to be long and costly to both sides.

"I think the administration, when it got the ruling form the second circuit last week, realized that their fight couldn't go on much longer, that they would probably lose completely in the second circuit, and they would be faced with appealing the decision to the Supreme Court," said Jessica Arons, director of the Women's Health and Rights Program at the Center for American Progress.

"I don't think they were going to pick up any new supporters by continuing to block the availability of having emergency contraception over the counter and probably were just going to continue to upset their base of supporters."

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The puzzle, however, is how the administration found itself in this position to begin with.

After all, President Obama pitched himself as the defender of women's rights as president and his re-election campaign upped the ante even more by mercilessly hitting his Republican opponent Mitt Romney as bad on women's issues.

But on this front, Obama stood alone, devoid of his allies on the outside save for his own Secretary of Health and Human Services Kathleen Sebelius. He cast very personal doubts on the safety of a product that women's health groups and the pharmaceutical companies say have been proven safe for use by women regardless of their age.

"The original decision was perhaps based more on emotions and gut decision rather than the evidence on the record," Arons said. "The evidence has been pretty clear all along. Even in the Bush administration, a commission at the [Food and Drug Administration] found that Plan B was effective and safe to use at all ages."

Though the Justice Department's actions Monday appear to be a capitulation, it indicated that the administration has not completely given up on fighting for the right to call the shots when it comes to who can buy the morning-after pill and who cannot.

In its letter to the court, the government says that it will approve a more expensive brand-named version of the one-step version of the pill. But it will allow the FDA to decide later whether cheaper, generic versions can also be sold.

For advocates, low-cost options for emergency contraception will help determine whether women of all means will be able to get access to the pill.

And the government also stated that it will not allow a two-step version of "Plan B" to be sold without a prescription and point-of-sale restrictions for younger women, citing "significant differences" between the one-step and two-step versions.

So advocates won't rest easy, yet, Arons said.

"It is a huge victory, to be sure," she said. "That's not to say that the fight is completely over. Women's groups have been holding their breaths on this for so long.

"Until the drug gets on the shelves, the fight isn't over."