If the Morning After Never Comes

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

As Alex Glass, Murray's spokesperson, puts it, "We've been pushing and pushing for an investigation. You've seen how far we've gotten."

Murray has pushed the matter in particularly novel ways. Last month, she introduced an amendment to the health and human services appropriations bill that would have shifted $3 million from Secretary Leavitt's office to the Office of Inspector General at HHS. The money would have helped pay for a broader Plan B investigation. When she offered her amendment, Oklahoma senator Tom Coburn, a conservative Republican, tried to add language calling for his own investigation—this one into why the FDA had approved the abortion pill, RU-486. Not wanting to confuse the two pills, Murray pulled the amendment.

Even a hearing wouldn't necessarily solve the problem. Explains one congressional aide, "We can investigate this issue to kingdom come, but the FDA has the power. And if it acts at the whim of the right wing, what can we do?"

illustration: Anthony Freda

Details

Not much, it seems, but don't expect Plan B proponents to give up their cause. Clinton and Murray recently posted an online petition challenging the FDA to "make the decision now on emergency contraception based on the scientific evidence." The senators ended up garnering 10,000 signatures, submitting them to the agency in response to a request for "public comment." Clinton's political action committee, Friends of Hillary, generated an additional 15,600 signatures from fans for the effort.

The National Women's Law Center, in Washington, D.C., tracked down two former FDA lawyers to press its case. One of them, former lead counsel Peter Barton Hutt, worked for the Nixon administration and wrote the textbook on FDA law; the other, Nancy Buc, served as the FDA's head lawyer during the 1970s. Their conclusion?

If the FDA wants to impose an age restriction on Plan B, it can look to the precedent for a drug like Nicorette, the nicotine gum, says Judy Waxman, of the National Women's Law Center. You can buy it over the counter if you're 21 and older; if you're not, you must have a prescription. The process undertaken by the FDA for Plan B, she says, "is just another delay tactic. Now, they can drag this out until the end of the Bush administration."

Which is exactly what proponents expect. The agency has exhibited a bunker mentality, denying wrongdoing despite mounting evidence. The day the GAO report was released, an FDA spokesperson said the agency stood by its original decision.

"How crazy is that?," says Moore of the Reproductive Health Project. The longer the agency delays a Plan B decision, the worse it looks and the more its upper management digs in its heels. Not even the loss of credibility seems to matter anymore. As she concludes, "The FDA has shown itself to be driven by a narrow political agenda of a limited proportion of this country."

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