In Our Control (31 page)

It would be another year before Plan B was finally approved for OTC status on July 31, 2006, with the significant caveat that it would be available only to women eighteen and older. Approval had taken three years and three different FDA commissioners, and it revealed how FDA leadership, tied to political ideologies, was capable of distorting and hijacking the drug approval process.
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As a new FDA commissioner, Margaret A. Hamburg, takes the helm, the challenge of fixing an institution with a vast range of systemic problems, serious financial challenges, and a badly damaged public image remain.
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After becoming the head of the massive organization in the spring of 2009, Hamburg noted that top priorities for the FDA include creating more transparency so that the public can understand how decisions about drugs are made. “The FDA has been seen as a cold regulatory agency and also something of a black box,” Hamburg explained. “We have a chance to open it up and make sure the American people have the safe,
high-quality foods they need, the safe and high-quality drugs and medical equipment they need.”
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A Failure to Communicate: Key Issues in the Plan B Debate

One persistent concern about allowing over-the-counter access to any drug, and particularly women’s health drugs, is that it leads to a breakdown in the doctor/patient relationship. Women ultimately need to see providers, for many good reasons beyond preventing drug side effects. But in the case of Plan B, one of the main problems with going through a doctor is timeliness: the sooner EC is used, the more effective it is. If taken within twenty-four hours, it may reduce the risk of pregnancy to .4 percent, while if a patient waits until forty-eight to seventy-two hours after intercourse, this risk goes up to 2.7 percent.
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Because EC is by definition used in unexpected or unanticipated situations, making a doctor’s appointment can pose a serious barrier to getting the drug quickly enough for it to be most helpful.

A second major issue is economics. If a patient has to pay for a doctor’s visit, the price of emergency contraception rises from around $50 to closer to $200. This would make the drug more expensive than consistently taking the Pill. It would pose serious access issues for young patients, particularly teenagers, who don’t necessarily have ready access to that amount of money.

Opponents of OTC access for EC are quick to romanticize the doctor/patient relationship as essential to female well-being. How, they ask, can women—particularly young women—be expected to make this sort of decision on their own without expert guidance?

This perspective ignores many of the realities of the modern dynamic between practitioners and patients. Female patients rarely have time for a conversation with their doctor in a health care environment that pushes doctors to fit in as many patients as possible and to delegate most care to nurses and aides. When female patients do see doctors, they are hardly peers engaging in a conversation. The doctor controls the right to dispense desired drugs and has the right to refuse certain care options. Female patients often (wrongly) construe personal questions about their intimate
lives as judgment. They may be embarrassed about choices they view as irresponsible. And to top it off, patients must pay for the privilege of having this so-called conversation. This is not to suggest that the vast majority of doctors don’t act out of concern and compassion for their patients. But it is necessary to acknowledge the fact that the doctor/patient relationship isn’t an equal one.

Considering these power dynamics, the remarkable thing about the EC debate is that it has redrawn some traditional positions. The majority of medical organizations and experts endorse over-the-counter status, despite the fact that this has meant a reduction in physician power. Why would doctors—who are so often excessively territorial and protective of their role as pharmaceutical gatekeepers—be willing to give up control of Plan B? One reason, surely, is that the majority of medical and professional evidence suggests that that giving OTC status to Plan B was the correct course. Many doctors are no doubt driven by a desire to provide patients with the most efficient care.

Plan B provides doctors with an occasion for activism on both sides of the political spectrum. A fascinating example of this involved Boston doctor Rebekah E. Gee and the corporate behemoth Wal-Mart. Gee prescribed emergency contraception to a patient in 2005. That young woman, a mother of three, tried to fill the prescription (as she did with all her medicines) at the Wal-Mart pharmacy. Gee notes, “Through her experience, I became aware of Wal-Mart’s refusal to stock Plan B.”
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Long a bastion of so-called red state values, the retail giant declined to provide the drug on moral grounds. Rather than stand idly by, Gee and colleagues partnered with a Boston law firm and reproductive rights groups to file a lawsuit demanding that Wal-Mart provide emergency contraception, according to a Massachusetts law demanding that pharmacies stock all “commonly prescribed medications.” The suit was successful, and after Gee and her associates threatened to pursue the issue state by state, Wal-Mart decided to carry the drug nationally. For her efforts, Gee received threatening e-mails and letters, including some that accused her of being like Hitler and trying to “ ‘depopulate’ the human race.”
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Gee takes this in stride, noting, “Our government has been burying its head in the sand, pretending that sex does not happen. This agenda sets women back decades, threatening their right to achieve equality in society.”
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Emergency contraception is big business, and with that comes big power; sales jumped from around 10 million in 2004 to 40 million in 2006, and then doubled again to nearly 80 million in 2007.
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These numbers have continued to grow as the drug has gone OTC in over forty nations. This opens up the fascinating possibility that drugmakers, who have so often reinforced traditional power relationships in the interests of promoting their products—often acting against the best interests of women—can also serve to create fault lines that challenge the medical establishment. This has the unintentional effect of providing opportunities for enhanced autonomy among female patients.

As we know, medical autonomy for women has always been hard to come by. Wynn and Trussell point out that in the drama of emergency contraception, female patients are always cast as the victims, a pattern consistent with portrayals of other drugs that supposedly make having sex easier. Just like the Pill before it, Plan B is accused of making it easier for men to force women to have dangerous sex. Despite the fact that many registered sex offenders have been documented filling Viagra prescriptions on the public dime under Medicaid, Plan B is the drug that has come under fire for “facilitating the sexual exploitation of women.”
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This focus on female bodies can be attributed in part to their potency as a metaphor for the
social
body. When female bodies become uncontrollable—when sex and reproductive issues are placed in female hands—it threatens existing social orders. Traditional power holders, like political and religious leaders and some members of the medical community, use this thinking to convince people that it is necessary to mediate and stabilize the threat of female sexuality. If we control women’s choices about their bodies, we can temper confusing and uncomfortable social shifts.

Such anxieties about sexuality are particularly felt with young women and girls, in this case leading to the initial restriction of OTC availability to women eighteen and older. But it’s obvious that restricting EC access isn’t doing much to stabilize our society. The United States has a teen pregnancy rate that is considerably higher than other industrialized nations.
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Emergency contraception could be particularly useful for younger women
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who have less predictable sexual patterns and less access to traditional birth control methods.

The Plan B issue has always been characterized by disagreements about whether or not EC could be considered a form of abortion. Perhaps most obviously at issue is the basic definition of pregnancy. Most major public health groups define pregnancy
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as starting after the implantation of a fertilized egg in the womb. At this point the body comes to understand that it is carrying an embryo, and the dividing cells continue maturing. But some members of the pro-life community have moved in recent years to locate the beginning of a pregnancy (if not the beginning of life) before this, at the moment where sperm meets egg and fertilization occurs. This is a new gloss on an old argument: instead of debating whether life begins at conception, pro-life forces are attempting to redefine the meaning of conception. Those who claim that emergency contraception is abortion have been forced to conjure up old-fashioned images of silent film–style villains and damsels in distress, because the usual tools of pro-life groups—specifically, images of developing fetuses—are impossible to deploy in the Plan B context.

It is estimated that half of fertilized eggs are never implanted and leave the body before any biological changes indicative of pregnancy occur. Many things can cause this to happen, including breastfeeding. Indeed, this is one way that lactation acts contraceptively. According to this way of thinking, breastfeeding women should avoid sex entirely because they might fertilize an egg that would be prevented from implanting and in that way inhibit the growth of life.

EC proponents have sought to avoid this messy debate by repeatedly stressing that the method works by inhibiting ovulation, not by preventing implantation. While certainly EC does the former, it may do the latter as well: no one is sure. The fact that science lacks a basic functional understanding of EC opens it up to the accusation that it works as an abortifacient. In fact, the same questions that exist about EC also endure with more traditional oral contraceptives.

Plan B is a strange drug that doesn’t fall neatly into established categories. Even though EC works like birth control pills, the fact that you use it
after
sex makes it seem more like an abortifacient; when opponents of the pill speak about it, the fact that it isn’t one doesn’t matter. For reasons that are more conceptual and ideological than scientific, postcoital contraception unsettles and confuses people. We are used to the idea that
contraception must involve forethought, and that a failure to plan will (and in the minds of some should) have consequences. Because it is taken after sex, Plan B seems to be “breaking the rules.” In doing so it has created a murky fluidity among legal but contested medical options, like abortion, and more generally accepted forms of health care, like birth control pills.

This is a middle ground that has been effectively exploited by those who seek strict social controls on female reproduction. Efforts to restrict women’s options that started with abortion and have moved on to EC can easily advance to the Pill or the IUD. Ambiguities that exist about the ability of EC to prevent implantation also exist with more traditional hormonal contraceptives. By making a psychological association between EC and abortifacients because they both happen after sex, and using this to argue that anti-implantation mechanisms constitute abortion, religious and cultural forces opposed to birth control are able use EC as a gateway for implying that contraceptives generally are a form of abortion and should be restricted or eliminated.

Facing the Zygotes: Language, Conscientious Objection, and Contraceptive Politics

Definitions matter in this negotiation. When word began to spread in the summer of 2008 that the Bush administration was planning to institute a “conscience rule” that would support the rights of health care workers to deny giving care that they found morally objectionable, women’s health activists were quick to point out that one of the major issues at stake was when pregnancy began. Ostensibly, the bill was about abortion; it would ensure that religious persons were never forced to participate actively or passively in the termination of pregnancies. A deeper look suggested that broader issues were at stake, particularly an effort to redefine when pregnancy starts and blur the lines between birth control pills and abortion. Lawyers for the National Women’s Law Center noted, “This gives an open invitation to any doctor, nurse, receptionist, insurance plan or even hospital to refuse to provide information about birth control on the grounds that they believe contraception amounts to abortion.”
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The rule was officially announced in December 2008, about a month before Bush left office, and it went into effect on Barack Obama’s inauguration day. The rule missed being enacted by its original November 1 deadline but happened anyway under a “White House directive” for “extraordinary circumstances.”
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Writing in the
New York Times
, journalist Robert Pear noted, “Administration officials were unable to say immediately why an exception might be justified in this case.”
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The rule said that “providers—including hospitals, clinics, universities, pharmacies and doctor’s offices—can be charged with discrimination if an employee is pressured to participate in care that is ‘contrary to their religious beliefs or moral convictions.’ ”
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It had the potential to affect low-income communities in particularly adverse ways, since it applied specifically to publicly funded institutions and communities where people had fewer resources to choose from if the health care they needed wasn’t being provided. Mary Jane Gallagher, president of the National Family Planning and Reproductive Health Association, noted, “We worry that under the proposal, contraceptive services would become less available to low-income and uninsured women.”
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The Obama administration immediately announced plans to roll back the rule, but the process could take months to finalize.