If the Morning After Never Comes

The Bush administration is set to keep emergency contraception out of reach

By now, it has become all too apparent that George W. Bush's Food and Drug Administration likes to play politics with women's reproductive health. It wasn't exactly surprising when a report recently revealed the agency's "unusual" maneuvering over the morning-after pill, or Plan B—a booster dose of the ordinary birth control pill that has been approved for over-the-counter sales by an FDA advisory panel and the staff itself, but has remained in limbo since April 2003.

On November 14, the Government Accountability Office— the investigative arm of Congress—issued findings from a 16-month investigation into why, in May 2004, the FDA first refused to make Plan B available without a prescription. Barr Laboratories, which manufactures the drug, has revised its original application and is now requesting approval for over-the-counter sales for women older than 16.

In its 62-page report, the GAO describes what amounts to a paternalistic agency whose top officials cared more about teenage girls' sex lives than about the drug's safety. It documents an array of irregularities—most notably, the way officials informed FDA staff that the application would be rejected before the scientific review was complete. The action was unprecedented. Of 67 similar decisions over the past decade, Plan B marks the only one denied by upper management over staff recommendations.

illustration: Anthony Freda


"This was a politically motivated decision that came down from the highest levels of the FDA," said Senator Hillary Clinton, in a joint statement with Senator Patty Murray of Washington. The two Democrats had called for the GAO investigation back in June 2004, and have pressed for a decision on Plan B ever since.

With the GAO report in hand, reproductive-rights advocates and their legislative allies are looking to use its findings to forward their cause. As it stands, the FDA has indefinitely postponed a ruling on Plan B. Though the agency has admitted that Plan B is safe, it now says the age restrictions—which the agency requested to begin with—have raised legal issues that need examining for months, maybe longer. That means the wait could last the entire Bush administration.

Kirsten Moore, of the D.C.-based Reproductive Health Technologies Project, has pushed for emergency contraception for more than a decade, and says her camp has "no real standing on Capitol Hill right now." Legislative allies are mostly Democrats, a minority in both chambers. They can make a certain amount of noise, but they don't have the power to schedule a hearing or pass legislation.

When asked what Plan B proponents should do now, Congressman Jerrold Nadler, a Manhattan Democrat and one of the 29 House members who requested the GAO report, sums up the sentiment. "I'm not sure we have leverage to do anything," he says, especially in the House, where conservative Republicans dominate the agenda. But that doesn't mean he and other elected officials won't try.

As Nadler puts it, "We have to wage a guerrilla war against the FDA."

As soon as the GAO had released its findings, 18 House Democrats sent a letter to Health and Human Services secretary Michael Leavitt, who oversees the FDA, urging him to "renounce categorically the manipulation of science depicted in the GAO report."

Congresswoman Louise Slaughter, a Niagara Falls Democrat and a co-chair of the Bipartisan Congressional Pro-Choice Caucus, signed the November 14 letter. She calls the report "a smoking gun" proving that political concerns have trumped science at the FDA, but says there's yet more to learn.

For starters, the GAO wasn't able to determine the role of certain top officials. Mark McClellan, who headed the FDA during the years covered by the report, refused to answer questions, as did his successor, Lester Crawford, who quit the agency without explanation this fall. And because the GAO has no authority to compel information from the White House, its report couldn't determine how far up the chain of command the politicking went.

"We need a hearing," says Slaughter. "We're desperate for a hearing."

She and other Democrats are pushing for one before the House Government Operations Committee, which has the power to subpoena witnesses and records. But Republicans control Congress, and thus the committees. And no one expects them to rush to get behind the effort—not when the goal is to probe apparently improper behavior by Bush appointees, let alone to ensure accessibility to an emergency contraceptive that religious conservatives wrongly equate with abortion.

Notes Nadler, who also signed the House letter, "Our hands are tied in many ways."

No one understands this kind of power bind better than Clinton. She and Murray have dogged Bush's FDA for years over Plan B, going so far as to place a "hold" on Crawford's nomination last June. Yet that tactic didn't go as planned. After securing promises that the FDA would act on the application, they lifted their hold, only to watch the agency postpone a decision yet again.

In light of the GAO's findings, Clinton and Murray are renewing their calls for a hearing before the Senate health committee, on which they sit. The senators, aides say, are hoping to use the latest evidence to convince Senator Michael Enzi, the Republican chair, of the need for further investigation. Enzi, if you recall, had assured the senators a hearing if they lifted their hold and the FDA didn't act. He, too, has failed to keep his promise, telling the senators that "other things take precedence," aides say.

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