By Kathleen Keer
Newsday
December 23, 2005

Brooklyn federal Judge Edward Korman refused yesterday to dismiss a lawsuit seeking to force the government to permit over-the-counter sales of a controversial emergency contraceptive pill.

Attorneys for the Manhattan-based Center for Reproductive Rights sued the federal government this past January on behalf of two advocacy organizations and nine women from a group called the Morning-After Pill Conspiracy. The lawsuit alleges that the Food and Drug Administration ignored a statutory deadline for deciding whether the pill, called Plan B, could be sold without a prescription.

Plan B, sometimes referred to as the morning-after pill, can prevent pregnancy if taken within 72 hours of having sex. Anti-abortion groups claim it causes abortions, while its manufacturer, Barr Pharmaceuticals, says it simply prevents pregnancy.

Conservatives and the anti-abortion lobby have pressured the Bush administration not to permit over-the-counter sales. The drug has been available by prescription since 1999.

Korman repeatedly questioned the FDA's failure to make a decision on nonprescription sales. "This has all the earmarks of an administrative agency filibuster," he said. "There's a serious issue here as to whether they're acting in good faith."

Assistant U.S. Attorney Franklin Amanat had objected to the lawsuit, arguing that the Center for Reproductive Rights did not have legal standing. Korman disagreed.

The lawsuit argues that the FDA violated women's constitutional rights to privacy and equal protection by failing to approve nonprescription sales.

The agency rejected Barr's application in May 2004 and this past August saying it needed more time to consider nonprescription sales to women younger than 17. Dr. Susan F. Wood, the FDA's top women's health officer, then resigned in protest.

Last month, the Government Accountability Office issued a report that found FDA officials made their initial decision even before the agency had finished reviewing the drug.

"The question here is [is] there some knowledge that FDA officials have about the safety of the drug," said Simon Heller, a staff attorney for the Center for Reproductive Rights.