Our Government, Our Parents, Ourselves: Emergency Contraception and the Battle to Protect Girls

By Hillary Knight*

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On December 8, 2011, President Obama gave a routine statement to the press.1 Ben Feller, a reporter for the Associated Press, asked, “I’m wondering if you personally intervened in any way in halting the sale of the ‘morning after’ pill to those under 17, and whether you think politics trumps science in this case.”2 Mr. Feller was referring to a highly unusual turn of events that occurred the previous day during what was supposed to be a routine press conference held by the Food and Drug Administration (FDA).

FDA Commissioner Margaret Hamburg announced on December 7, 2011, that the FDA had been prepared to approve an application for non-prescription sales of Plan B One Step (PBOS) without age or point-of-sale restrictions.3 However, despite conclusive findings over the previous decade that PBOS is safe and effective and that adolescent females are capable of understanding its labels and warnings, the Secretary of the Department of Health and Human Services (HHS), Kathleen Sebelius, was “invoking her authority under the Federal Food, Drug, and Cosmetic Act to execute its provisions” and had directed the FDA “to issue a complete response letter,” meaning “that the supplement for nonprescription use in females under the age of 17 is not approved.”4 Organizationally, the FDA falls under the authority of HHS.5 The Secretary had simply pulled rank and overruled the FDA and Commissioner Hamburg herself because she did not “agree with the [FDA’s] decision to allow the marketing of Plan B One-Step nonprescription for all females of child-bearing potential.”6

In response to Ben Feller’s question on December 8th, the President assured the press that he had not been involved,7 but he added a few thoughts on the decision anyway:

I will say this, as the father of two daughters. I think it is important for us to make sure that we apply some common sense to various rules when it comes to over-the-counter medicine. And as I understand it, the reason Kathleen made this decision was she could not be confident that a 10-year-old or an 11-year-old go [sic] into a drugstore, should be able—alongside bubble gum or batteries—be able to buy a medication that potentially, if not used properly, could end up having an adverse effect. And I think most parents would probably feel the same way.8

For several reasons, President Obama’s statement was troubling. Setting aside the common-sense observation that medications, even over-the-counter drugs like Tylenol, are not typically found alongside bubble gum or batteries, the non-generic version of the drug is cost-prohibitive for many adult women, much less 10- or 11-year-olds.9 Finally, as Judge Edward Korman points out in his decision overruling Secretary Sebelius and directing the FDA to approve the application for non-prescription sales of PBOS, “the number of 11-year-olds using these drugs is likely to be miniscule.”10 Critics have also pointed out that a legitimate fear of over-the-counter drug overdose among children would mandate the removal of most over-the-counter painkillers and cough medicines.11 So, if “common sense” can’t explain the unusual intervention of Secretary Sebelius, what was really behind this unprecedented usurpation of power?

Judge Korman was clearly irritated by the behavior of DHHS when he authored an order overruling DHHS and upholding over-the-counter access to PBOS.12 The public was left wondering, “Why would the normal operations of this administrative scheme be turned so completely on their head over this particular issue? And why would it take a lawsuit to put everything right again? And why does our President have such a strong opinion about something he didn’t have anything to do with?” The answer to these questions is about more than little girls and young women in America and the struggle for their autonomy; the answer to these questions has to do with the ancient doctrine of Parens Patriae and its critical importance to the authority of our governing bodies.

Section I of this paper briefly describes constitutional privacy jurisprudence and why the government gains power and authority as it restricts the private sphere, particularly with regard to reproductive rights. Section II describes the exclusionary and discriminatory mechanisms employed to regulate the sale and purchase of PBOS, which is one of the ways that the government exercises its parent-like control over the decisions and freedoms of young women. The final section argues that privacy jurisprudence and exclusionary mechanisms are simply ways in which the state creates and perpetuates its role as guardian and parent over its citizens. Like the ability to ground rebellious teenagers or to set their curfews, the limitations set by the state are not to be challenged or questioned, but followed with the understanding that they are executed with our best interests in mind. This, I suggest, is quite dangerous and it is why Judge Korman’s reversal of Sebelius was deeply threatening, not only to the HHS, but also to the entire executive branch.

I. You May Not Leave the House: How the Public/Private Distinction Reinforces the Power of the Authority

I suggest that at least one explanation for, as Judge Korman called it, “the unprecedented intervention of the Secretary,” is that her action was an instance of the state attempting to draw a line between public and private acts, categorizing access to PBOS as part of the former.13 As a matter of constitutional law, the “zone of privacy” protects certain private acts, property and effects from state intrusion.14 Alternatively, when acts are done in public, they are within the state’s authority to regulate pursuant to and within the constraints of its police powers.15 So it should not be surprising that if the government seeks to regulate the sexual behavior of minors, at least under the pretense of public health, it would oppose shifting the act of purchasing the drug from the public sphere toward a private transaction, subject to fewer government regulations. But still, aren’t we left wondering, why is the government so interested in regulating this type of sexual conduct?

In an article in the New England Journal of Medicine, three physicians lamented:

Having to approach one of their peers working in a store in their neighborhood, identify themselves as having recently had unprotected sex, and provide a document with their name and address will humiliate many women and discourage many from seeking, purchasing, and using the product to prevent an unplanned pregnancy.16

The peculiar embarrassment a woman might feel by having to confess her sexual behavior to a pharmacist is but one example of the cultural framework which shames girls and women for displaying their sexuality.17 When a young woman enters her local pharmacy seeking PBOS, she is faced with the task of admitting to a pharmacist that she has recently had unprotected sexual intercourse and thereby has failed to achieve a societal ideal that is, in reality, impossible to achieve—the simultaneously chaste and erotic female.18

Since Judge Korman’s decision, women seeking PBOS can make their purchase with minimal human interaction, as the order struck down age and point of sale restrictions that made it necessary to speak with a pharmacist.19 That humiliating public confession to a stranger—or worse, a familiar face—in a commercial setting with no right or privilege of anonymity would no longer be required.20 The new rules allow buying the product to become a more private, nearly anonymous event outside the long reach of the government. This is problematic for an administration that has taken a stand on the underlying moral issues involved in PBOS use by unmarried young women.21

II. You Cannot Hang Out with Her: How Mechanisms of Exclusion Discriminate Against Discrete Groups and Codify Moral Judgments

Not unlike controversial voter-ID laws around the country, the state’s effort to require women and girls to present government-issued identification is one mechanism that excludes discrete groups.22 Wood argues that, “many poor or disadvantaged women will be denied access because they do not have a driver's license, passport, or other form of identification with which to verify their age.”23

Anyone who cannot afford PBOS or who fears the consequences of discussing her sex life with a pharmacist may be disproportionately exposed to the risk of unwanted pregnancy and the consequences that are correlated with unintended pregnancy such as abortion,24 ineligibility for public assistance,25 and potential long-term developmental and cognitive disadvantages for the child.26 Professor Dean Spade writes that “[w]hile we are ‘used to viewing moral choices as individual, as dilemmas, and as rational choices,’ collective forms of choice, like the creation of norms through classification decisions, should also be understood as having moral implications.”27 Likewise, we are used to viewing the choice to have sex without the intention to beget a child as an individual moral dilemma, but we ignore the normative implications of our collective choice to regulate PBOS. The designation of a privileged class of women who are “allowed” to buy PBOS merely by virtue of having appropriate documentation of their identity (in terms defined by the state) not only exacerbates the shaming of women seeking PBOS, but will drive up the number of unwanted pregnancies and related adverse social, economic, and health outcomes.28

The mere designation of permitted and prohibited purchasers creates a moral designation of who is worthy to determine their own procreative future, and also systematically excludes discrete groups from accessing the drug. Professor Spade stresses that immigrants, the elderly, rural Americans, certain racial groups and poor people will all be excluded from any bureaucratic scheme that requires documentation of identity.29 Put another way: these marginalized groups will have the most difficulty in purchasing PBOS. This will seriously affect their opportunities to avoid unplanned and unwanted pregnancies.30

III. Because I Said So: How the Perpetuation of Parent Imaging Helps Reinforce the Authority and Power of Our Government

One reason that PBOS regulation is a state interest—one that the federal government is willing to disrupt administrative norms to defend against—is that it crafts an image of the state as a protective entity that seeks only the best interests of its citizens.

The President’s statement after Secretary Sebelius’ reversal reduced a multitude of radically disparate groups into two singular categories: parents and daughters. Not only do people who do not have children, parents of boys, and men in general all fall outside of the President’s categorization of who might be interested in the availability of PBOS, but the President especially failed to consider the position of parents who do not want their daughters to become pregnant after having unprotected intercourse, or who do not have a role (either by choice or otherwise) in their daughters’ sex lives. It was a powerful invocation of his role as a father not only of his own two daughters, but also of all citizens of the United States. The danger lies in the reasons given, or lack thereof, for such stringent and exclusionary rules. It was never common sense, empirical data nor public health that compelled the bizarre occurrences of December 2011, but rather the inherently familiar power of “because I said so.”

* Candidate for Juris Doctor, May 2015, Northeastern University School of Law.

1 President Barack Obama, Statement by the President (Dec. 8, 2011, 11:40 AM), http://www.whitehouse.gov/the-press-office/2011/12/08/statement-president; see also Ben Feller & Lauran Neergaard, Obama Calls Morning-After Call ‘Common Sense’, Associated Press (Dec. 8, 2011), http://news.yahoo.com/obama-calls-morning-pill-call-common-sense-213441621.html.

2 President Obama, supra note 1; see also Feller & Neergaard, supra note 1.

3 News Release, U.S. Food & Drug Admin., A Statement from FDA Comm’r Margaret Hamburg, M.D., on Plan B One-Step (Dec. 7, 2011), http://www.fda.gov/NewsEvents/Newsroom/ucm282805.htm.

4 Id.

5 U.S. Dep’t of Health & Human Servs., HHS Organizational Chart, HHS.gov, http://www.hhs.gov/about/orgchart/ (last visited Sept. 8, 2014).

6 U.S. Food & Drug Admin., supra note 3.

7 President Obama, supra note 1.

8 Id.

9 How Much Does the Morning After Pill (Emergency Contraception) Cost?, Drop-down link from Morning After Pill (Emergency Contraception), Planned Parenthood, http://www.plannedparenthood.org/health-topics/emergency-contraception-morning-after-pill-4363.asp (last visited Sept. 8, 2014) (stating that “It may cost anywhere from $30 to $65”); a full-time federal employee making minimum wage as of July 17, 2014 makes a gross income of $290 a week—before taxes, Social Security and any other deductions. Wages: Minimum Wage, U.S. Dep’t of Labor, http://www.dol.gov/dol/topic/wages/minimumwage.htm (last visited Sept. 8, 2014). The average full-time non-federal employee making minimum wage has a gross income of $301.60 per week before paying both state and federal taxes. Minimum Wage Laws in the States, U.S. Dep’t of Labor, http://www.dol.gov/whd/minwage/america.htm (last revised Sept. 2014). The Pew Research Center, after review of the Bureau of Labor Statistics’ findings, concluded that 3.55 million hourly workers make at or below the federal minimum. Drew Desilver, Who Makes Minimum Wage?, Pew Research Ctr. (July 19, 2013), http://www.pewresearch.org/fact-tank/2013/07/19/who-makes-minimum-wage/. I would submit that for the three-and-a-half million workers, who make less than $300 per week, as well as the individuals who do not or cannot participate in the labor market (such as 10- and 11-year-old girls), a pill that costs $50 is likely to be cost-prohibitive.

10 Tummino v. Hamburg, 936 F. Supp. 2d 162, 172 (E.D.N.Y. 2013) (finding that “…the potential population about whom the Secretary is concerned is infinitesimal, even if all of these young adolescents are unable to read a relatively simple emergency contraception label and use the drug appropriately”).

11 See Alastair J.J. Wood, M.D., Jeffrey M. Drazen, M.D. & Michael F. Greene, M.D., The Politics of Emergency Contraception, 336 New Eng. J. Med. 101, 102, (2012)(stating that “In our opinion, the secretary's decision to retain behind-the-counter status for Plan B One-Step was based on politics rather than science. It cannot be based on issues of safety, since a 12-year-old can purchase a lethal dose of acetaminophen in any pharmacy for about $11, no questions asked.”); Emily Bazelon, The Politics of Prude: If You Liked Bush’s War on Science, You’ll Love Obama’s Cowardice on Emergency Contraception, Slate (Apr. 9, 2013 11:25 AM), http://www.slate.com/articles/newsandpolitics/jurisprudence/2013/04/planbifyoulikedbushswaronscienceyoullloveobamas_cowardice.html.

12 See Tummino, 936 F. Supp. 2d at 198 (E.D.N.Y. 2013) (“The FDA has engaged in intolerable delays in processing the petition…The plaintiffs should not be forced to endure, nor should the agency's misconduct be rewarded by, an exercise that permits the FDA to engage in further delay and obstruction.”).

13 Id. at 170 (opining “[t]he motivation for the Secretary’s action was obviously political”).

14 U.S. Const. Amend. IV. See generally Roe v. Wade, 410 U.S. 113 (1973) (protecting the act of having an abortion); Carey v. Population Servs. Int’l, 431 U.S. 678 (1977) (protecting the right of physicians to sell contraceptives to minors); Loving v. Virginia, 388 U.S. 1 (1967) (protecting the right of individuals to marry someone of another race); Eisenstadt v. Baird, 405 U.S. 438 (1972) (protecting the rights of unmarried people to obtain contraception). For a complete treatment of constitutional privacy jurisprudence and its relationship to Plan-B, see Barbara Chevalier, The Constitutionality of the FDA’s Age-Based Plan-B® Regulations: Why the FDA Made the Wrong Decision, 22 Wis. Women's L.J. 235 (2008).

15 See Jacobsen v. Massachusetts, 197 U.S. 11, 25 (1905) (“According to settled principles, the police power of a state must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety”); Commonwealth v. Alger, 61 Mass. (1 Cush.) 53, 85 (1851)(“The power we allude to is rather the police power, the power vested in the legislature by the constitution, to make, ordain and establish all manner of wholesome and reasonable laws, statutes and ordinances, either with penalties or without, not repugnant to the constitution, as they shall judge to be for the good and welfare of the commonwealth, and of the subjects of the same”).

16 Wood et al., supra note 11, at 102.

17 See Don Mertan, Transitions and ‘Trouble’: Rites of Passage for Suburban Girls, 36 Anthropology & Educ. Quarterly 132, 133 (2005); Laurie Schaffner, Do Bad Girls Get a Bum Rap? Sexual Solutions and State Interventions, Millenium Girls: Today’s Girls and Their Cultures 269, 272 (Sherrie Inness, ed., 1998) (claiming that “[t]he sexualization of female life is a process that takes many forms, including the sexual objectification and devaluation of girls’ bodies and the sexualization of their awareness”. Meanwhile, Professor Schaffner points out, “[a] sexual double standard permeates girls’ lives …. This double standard … rewards male adventure and punishes girls’ sexual exploration”).

18 See Schaffner, supra note 17, at 274 (describing the simultaneous sexualization of female life and punishment of girls’ sexual exploration).

19 See generally Tummino v. Hamburg, 936 F. Supp. 2d 162 (E.D.N.Y. 2013).

20 See id.

21 See President Obama, supra note 1 (supporting the decision of the Secretary based on the President’s experience as a father and his personal endorsement of preventing women under 18 from being able to purchase the drug without restrictions).

22 See, e.g., Sari Horwitz, Pennsylvania Judge Strikes Down Voter ID Law, Wash. Post (Jan. 17, 2014), http://www.washingtonpost.com/world/national-security/pennsylvania-judge-strikes-down-voter-id-law/2014/01/17/472d620e-7fa2-11e3-93c1-0e888170b723_story.html; Rick Lyman, Texas’ Stringent Voter ID Law Makes a Dent at Polls, N.Y. Times, Nov. 6, 2013, at A20.

23 Wood et al., supra note 11, at 102.

24 In 1995, it was estimated that half of all unintended pregnancies in the United States were resolved by abortion. Comm. on Unintended Pregnancy, Inst. of Med. The Best Intentions: Unintended Pregnancy and the Well-Being of Children and Families, 50 (Sarah S. Brown & Leon Eisenberg eds., 1995).

25 See e.g., 106 Mass. Code Regs. 203.300(B) (2014)(Family Cap and Child of Record), which states that “A TAFDC assistance unit shall not be eligible for an increase in TAFDC assistance for a child born after the assistance unit's Family Cap date except as specified in 106 CMR 203.300 (C) or (D)”. This regulation prevents a family on welfare (TAFDC) from receiving any additional cash benefits if they become pregnant while receiving TAFDC, subject to some exceptions.

26 Comm. on Unintended Pregnancy, supra note 24, at 50.

27 Dean Spade, Documenting Gender, 59 Hastings L.J. 731, 744 (2008).

28 William D. Mosher, Ph.D., Jo Jones, Ph.D., & Joyce C. Abma, Ph.D., Intended and Unintended Births in the United States: 1982-2010, 55 U.S. Dep’t Health & Human Servs. Nat’l Health Statistics Report 1, at 2 (2012).

29 Spade, supra note 27, at 732.

30 Cf. Carol Sanger, Infant Safe Haven Laws: Legislating in the Culture of Life, 106 Colum. L. Rev. 753, 820 (2006), discussing maternal infanticide as well as newborn abandonment:

Certainly, premarital sex and out-of-wedlock pregnancies shamed and stigmatized girls well before the advent of the culture of life. But there is a startling aggressiveness to the new chastity. The government's position is clear: Pregnancy, sexually transmitted disease, and maternal death (whether from AIDS or from abortion) are acceptable costs of immoral sex because immoral sex may result in the truly unacceptable—killing unborn life. Pharmacists may refuse to dispense emergency contraception under statutory conscientious objection exceptions, politicians grandstand against the morning after pill, students are told condoms do not prevent STDs, and sex between teenagers is criminalized. These are high stakes indeed.

Professor Sanger’s discussion of the acceptable costs of immoral sex is revived in the PBOS context. By excluding certain classes of women (i.e., young, poor, transgender, rural, people of color and immigrants) through identification requirements, the augmented risk of becoming pregnant and the subsequent risks associated with unwanted pregnancy are disproportionately borne by these excluded individuals. Unfortunately for them, this is an “acceptable cost” of shielding girls from the menace in the pharmacy.