We still have to use weasel words like "may" or "could" or "might" in discussions about the U.S. Food and Drug Administration's position on nationwide availability of Plan B emergency contraception for women 18 and older. We're close. We're not there yet. According to an FDA announcement this week, we're ever so near to settling this politically charged debate - within weeks, not months, said an agency spokeswoman on Monday.
But then we're also talking about a pharmaceutical that FDA scientists deemed perfectly safe for women to buy without prescription nearly three years ago but has been mired in Bush Administration politics ever since. Plan B - commonly called the morning-after pill -comes in a set of two pills and can prevent pregnancy when taken within 72 hours of unprotected intercourse.
Thickening the plot here is that acting FDA Commissioner Andrew von Eschenbach's Senate confirmation may well depend on fast-tracking Plan B sales. Some Senate Democrats have threatened to put a hold on his confirmation unless he unequivocally commits to over-the-counter access.
We're not talking about medicinal marijuana here, or some drug that has questionable effectiveness.
Proponents say easier access to Plan B, without waiting for a prescription, would help prevent abortions. Planned families, children who are wanted, fewer abortions much further down the line. Isn't that a worthy goal?
The most staunch opponents say taking Plan B even one day after conception is an abortion. They also say wider access would encourage promiscuity. Wendy Wright of Concerned Women of America told USA Today, "Anyone, man or woman, over 18 could buy the drug and turn around - even in the store - and give it to a 13-year-old."
Once the feds act - presuming they will, and soon - where does this leave the states? More on point, where does Utah fit in? Given our state's long and illustrious history of wading straight into women's private reproductive decisions, how might Utah politicians get tangled up in the brave new world of morning-after contraception, where adult women would be buying Plan B easier than Flonase?
It can be a moving target, this issue of states' powers to override federal regulation of pharmaceuticals and interstate commerce. But University of Utah law professor Wayne McCormack was intrigued enough with my inquiry to take a crack at it.
"If the FDA authorizes a drug for distribution, that doesn't mean states cannot still try to protect their citizens from what they view to be dangers beyond federal definition," he says.
"Typically, a state wouldn't be allowed to interfere with interstate commerce or discriminate against interstate transactions. But that's tricky. States differ in what they view to be safe or unsafe. Utah can limit sales of certain fireworks that Wyoming allows. Or Utah might restrict sales of certain chemicals or pesticides deeming them unsafe for our watershed."
But then, much of this circles right back to America's uneasy standing with Roe v. Wade and reproductive politics in general.
"The big limitation," says McCormack, "would be if state restrictions were read as a way to interfere with a federally protected right to obtain a service or product." Read: Abortion and contraceptives.
Stay tuned.
hmullen@sltrib.com
