Judge Viktor Pohorelsky, a federal judge for the second circuit of the U.S. Court of Appeals, has granted the Center for Reproductive Rights’ (CRR’s) motion for a subpoena of White House records in their continuing case against the Food and Drug Administration (FDA) over its handling of a decision regarding emergency contraception. CRR filed a lawsuit on behalf of the Association of Reproductive Health Professionals, the National Latina Institute for Reproductive Health, and others, arguing that the FDA did not follow normal drug-approval procedure when it first denied the application for over-the-counter status and that the denial “violates the rights of women who need EC to privacy and equal protection under the Fifth Amendment.”¹

During court-mandated depositions, Dr. Mark McClellan, the former head of the FDA, confirmed that he had discussed the pending application with a White House official, a rare occurrence in the FDA drug-approval process.² His testimony was critical in the decision to give CRR the right to subpoena documents.

The subpoena gives the CRR access to over three years of White House documents, including letters, e-mails, and records of conversations between the White House’s domestic-policy office and select FDA officials.³

The lawsuit also argues that in failing to approve nonprescription sales, the agency violated women’s rights to equal protection and privacy as guaranteed by the U.S. Constitution. While the case is still pending, a favorable judgment would compel the FDA to approve over-the-counter sales of Plan B for young women under the age of 18. Currently, Plan B is available over the counter for women 18 and over while young women under the age of 18 still need a prescription.

To support access to emergency contraception, please see: http://www.backupyourbirthcontrol.org.

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