How the Birth Control Pill Got Over the Counter
2023-07-19 00:30:29
This is what the news should sound like. The biggest stories of our time, told by the best journalists in the world. Hosted by Michael Barbaro and Sabrina Tavernise. Twenty minutes a day, five days a week, ready by 6 a.m. Listen to this podcast in New York Times Audio, our new iOS app for news subscribers. Download now at nytimes.com/audioapp
From the New York Times, I'm Natalie Ketroff. This is The Daily.
Last week, for the first time in U.S. history, federal regulators approved the sale of a birth control pill without a prescription. Today, my colleague Pam Belluck on why, after decades of brutal battles over contraception, this decision played out so differently.
It's Wednesday, July 19th.
So, Pam, when I saw this news story pop up that the birth control pill had been approved to be sold over-the-counter for the first time, I imagined that there was some sort of story of a bruising battle between reproductive rights groups and social conservatives, who have typically been opposed to things like abortion and contraception. But then we called you and you said, nope, this was actually a very uncontentious fight that just played out. So I am surprised and confused. Help me.
Yeah, you know, it was really striking to me, too, that when this thing kind of got to the point of a decision being made, there was overwhelming support and even pressure from many people to get this approved. And the conservative voices that are typically against this were very quiet. And given how controversial and how much of a flashpoint contraception has been over the decades, this was a really interesting moment. It was really notable that in this case, you didn't have a lot of strong voices opposing it.
So, Pam, what is the beginning of this story? How did we get here?
So the birth control pill was developed mostly in the 1950s, and it was approved first by the FDA in 1960.. They come in big bottles for a year's supply. Smaller bottles for a month's supply and handy calendar packs. It was absolutely groundbreaking for women and for reproductive health. How effective is it?
If taken as it should be, 100 percent. You know, there was really nothing else out there that was as effective that people could obtain. You know, it's much more effective than condoms. It stops ovulation. So there is no egg.
And for the first time, women were able to control their own reproductive choices and they were able to take control of when they wanted to get pregnant. And so it becomes a huge influence in women being able to go into the workforce, to be able to control how many children they have. And it really is just transformative for American society.
It sounds like it's not an exaggeration to say that in giving women more control over when they get pregnant, the pill really transforms their lives. It allows them to work for longer. It leads to the kind of gender picture in the job market that we have today, which is closer to parity than it was half a century ago. I mean, it's. it's a catalyst for for pretty broad changes.
Yes. But of course, there was a backlash.
In the 1960s, you had the Pope and Catholic leaders opposing birth control, except for the rhythm method. You also had a branch of the NAACP and later other black leaders registering opposition as well, because they were concerned that this was going to be used as a tool to try to keep the black population down. And there was some history that they drew on to sort of support that, because the development of the pill was in part funded by people who supported eugenics. And the first birth control pill clinical trials were conducted in Puerto Rico among women who were relatively poor. So that sort of feeds into what's going on here in the 1960s.
And then, interestingly, there was also a bit of a feminist backlash. There were concerns being raised about the health side effects of the pill. None of them were very, very severe. But the idea that you have generally a white male medical establishment, you know, kind of promoting birth control that women would use, fed into concerns that feminists were having about the patriarchy and whether men were basically trying to tell women what to do.
So the pill is facing opposition from different quarters. And at the same time, American women are interested in oral contraception. It's getting increasingly popular. There's growing demand for it. It is estimated that perhaps one out of every three American women married between the age of 15 and 44 has used or is using the oral contraceptive.
And as with all thorny issues in American society. Number 496, Estelle T. Griswold et al. Appellants versus Connecticut. This one gets catapulted to the Supreme Court.
Chief Justice, may it please the Court. This case involves the validity of the Connecticut anti-contraceptive statutes. And the Supreme Court makes one very key decision in 1965 that says that there's a constitutional right to contraception for married couples. Mr. Chief Justice, may it please the Court.
And then later in 1972.. What happens if this statute is held constitutional? You're going to say sorry to the unmarried mother who might have had four or five illegitimate children already. A next birth may send her to cause grave physical injury, even death. And you say sorry, we can't prescribe to you because you're unmarried.
I mean, that's patently against the best interests of the state of Massachusetts. It's against.
the whole thrust of federal legislation.
It's an outdated anachronism from a Comstockian statute back in the 1870s, which has no business being on the statute books today. It says, you know what, that constitutional right applies to everybody. And so at this point, you know, there had been some states, I think about half the states in the 1960s had outlawed contraception, but all of that goes away. And there becomes a constitutional right to have access to contraception. And that paves the way for even more popularity of the pill.
And that 1972 decision on contraception comes a year before Roe, right? When the Supreme Court says there's a constitutional right to abortion.
That's right. It's really a time period of major change and big barriers to contraception, to reproductive health access are being upended. So you have millions of American women taking the pill. Even majorities of American Catholics are using contraception and some of them are using the pill.
Really?
Yeah. And by the 80s, you have lots of different companies starting to develop different types of birth control pills. And so there's just a lot of innovation in the field of birth control pills.
Right. And that innovation is in itself an indication that there's been a meaningful enough break in the opposition to contraception and the birth control pills, specifically that these companies see a real market there that they want to get it on.
Yes.
So, by the early 1990s, you have reproductive health experts who are floating this idea of getting a pill that could be available without a prescription.
There's even a little burst of discussion with the FDA about this. There are academic articles written about this. And so this idea starts to sort of get into the social bloodstream a little bit. But at the same time, in the 1990s, the issue of abortion starts to really become a more contentious issue with the religious right. And contraception just kind of gets pushed to the side as an issue that people are talking about.
But the issue of whether a pill should be over the counter is still quietly burning in the background. And you have scientists that are doing research. They're trying to answer some key questions for the medical community. They're trying to make sure that they can document that it's safe to use without a prescription, that it won't keep women from going to the doctor for other reasons like pap smears and things like that. And by the early 2010s, they have really convinced the medical establishment.
And you have major medical organizations in reproductive health coming out with official statements saying, we think there ought to be an over-the-counter birth control pill.
And do their recommendations have an impact on the debate or on policy at this point?
Not right away. And part of that is because, at the same time that this is happening, you have other reproductive health fights that are really in the spotlight. Tonight, I return to speak to all of you about an issue that is central to that future. The Obama administration has come in.
And that is the issue of health care.
And one of their first priorities is the Affordable Care Act to expand access to health care. And one very controversial aspect of that is that the government mandates coverage of prescription birth control, including prescription birth control pills. On January 20th this year, the U.S. Department of Health and Human Services approved a mandate that will force Catholic employers to violate their consciences and fund practices that, to them, are morally offensive. The anti-abortion forces are against that.
And they start conflating the birth control pill with abortion and the morning after pill. The scope of this mandate included drugs that can prevent the implantation of the new embryo. Therefore, in our view, and that of many others, is really abortifacient. They start falsely saying that the morning after pill is an abortion pill and blending that together with other types of contraception. And another issue that they have is this concern that making all kinds of reproductive health care more available might encourage teenagers to be more sexually promiscuous.
There's no evidence that this is the case, but this is a conservative argument. And so all of this really sucks up all the oxygen in this arena. And the idea of trying to get an over-the-counter birth control at this point is kind of a non-starter and nobody brings it up for another few years.
So this gets drowned out again by the abortion fight.
Yes. It basically recedes from public view and it doesn't get thrust back into the spotlight until 2022, when Roe v. Wade is overturned.
We'll be right back.
My name is Thomas Gibisneff. I'm a journalist at the New York Times. I served in the Marine Corps as an infantryman. When it comes to reporting on the front line, a lot of the same basics are at play. You're looking at the map of where you're going.
If you're on a paved road, a field road, is there a hospital nearby? Is your body armor affixed with a first aid kit? Does everyone know where that first aid kit is? We arrive in a military position. I get out of the car.
I look at my watch. I set a timer. No more than an hour. I'm listening for drones, jets, checking with the team. Is everyone comfortable?
And if they are, then we proceed. Frontline reporting is dangerous, but I think nothing is more important than talking to the people involved, hearing their stories and being able to connect that with people thousands of miles away. Anything that can make something like this more personal, I think, is well worth the risk. New York Times subscribers make it possible for us to keep doing this vital coverage. If you'd like to subscribe, you can do that at nytimes.com slash subscribe.
So, Pam, what's the story of how the pill comes back into focus once Roe is overturned?
So it turns out that in 2016,, a French company partners with an American reproductive health group, and they decide that they are going to do the studies and the research needed to put together an application to the FDA for approval of an over-the-counter pill. And so they're doing all the studies that they need, and, at the point where this is all ready, they submit their application to the FDA in July of 2022..
Wow. So right after Roe is overturned.
Yeah, it's like three weeks after Roe is overturned. And it's a coincidental timing. It's not like they saw the Supreme Court decision and said, we're going to submit this now. They were just ready to do that. But the timing becomes really important because abortion access starts to get taken away in half of the states.
And not only that, Justice Clarence Thomas, in a concurring opinion to the decision that overturned Roe, starts to raise the prospect that some other Supreme Court precedents might drop away, including the precedent allowing for the right to contraception access.
Right.
So you get a huge groundswell of concern about contraception, about the need for it, about whether it's going to be taken away. And when the application for this pill comes before the FDA, the public is really paying attention.
And how does that manifest? What does that look like?
So the FDA has what's called an advisory committee hearing before they make the decision. And before that, there's a period where people can post comments for the FDA and the advisory committee to see. Usually you get some pro, some con. But in this case, you got hundreds of comments and almost all of them were in favor of the over-the-counter pill and really saying how necessary it was, especially now. Good morning and welcome.
And you get that same dynamic at the advisory committee hearing in May, which I listened to. It was a two-day hearing. Speaker number 27.. And there is just a parade of like three dozen people who are speaking about what they want to happen.
Hello, my name is Deva Withron. I am 19 years old and I'm from McAllen, Texas. When I was 16 years old, I became sexually active. Coming from a very religious community.
There's some really impassioned and very kind of emotional statements, especially from young people who are saying that they had a really hard time getting prescription birth control when they tried.
When I finally mustered the courage to open up to my parents and disclose that I needed a new form of contraception to help me feel safe, I was met with a stern no and a grounding. I was told that if not being given birth control would stop me from being active, then so be it. And so I continued having sex without birth control, all because I could not access it under the prescription only system.
So you have young women, teenagers.
For too long, I shied away from signing my name on a log to be seen out of fear that I would be judged or seen as irresponsible for seeking control over my reproductive health.
Women of color.
If opioid were available over the counter, rural youth could access this life-changing care online with ease.
We're people representing rural communities.
I'm asking you to please consider making birth control over the counter with no age restrictions. It could be life-changing for many of us.
And. Good afternoon. My name is Lisa Haddad, and I'm an OBGYN with subspecialty training in complex family planning.
There are statements from doctors who are saying.
While deep and meaningful interactions with health professionals are often helpful to some patients, these visits are often brief and are not required before a patient starts to use contraception.
Look, we prescribe this pill over the counter and we want to cut ourselves out of the process.
This will not prevent women from having discussions with providers. Your decision can help millions to have easier access to effective contraception.
We do not see any reason for us to be there writing these prescriptions, when it is perfectly safe and much easier for women if they can just pick it up in a CVS or, you know, in a convenience store.
This is important, necessary and urgent. Thank you for your time.
So it's just a very kind of dramatic and moving series of statements that you don't always get at these kinds of federal hearings. I'm Susan Musket, president of Pro Family Women, and we oppose this proposal to allow over-the-counter access to the OPIL contraceptive pill. I think there was at least one person who spoke against it. A key issue is whether the FDA will allow minor girls over-the-counter access to OPIL without their parent's permission. I think she was mostly concerned about the issue of whether this would be available to young people and whether they should be still required to get it by prescription.
We will now adjourn this meeting. Thank you. But most anti-abortion groups, most conservative activists, were just really not saying anything about this. And, believe me, they do weigh in on every abortion-related issue very strongly. So it's notable when they are quiet about something, when they're not even really mentioning.
it. Right.
So what was clear from the public comments was that there was overwhelming support. What was not clear was whether the FDA was actually going to approve this. They had some safety concerns about whether this was a good idea to make it available over-the-counter. But ultimately, they did approve it. And what they said was the safety concerns that they had might still be there, but that they were far outweighed by the public health need and the public health benefit of giving people access to over-the-counter birth control.
But, Pam, what happened to the strong feelings about contraception that we saw during the Obama years and the forces behind them? Why aren't we seeing a bigger backlash?
Well, I think there are a couple things going on here. One is that, once again, abortion and the battle over abortion is kind of soaking up a lot of the oxygen and energy on the anti-abortion side. So, even though they won with the Supreme Court decision, there are a lot of things that they are battling for and trying to protect in the states where anti-abortion laws are being passed. And so there's a lot of energy that they're spending trying to do that. And they're also trying to get a national abortion ban.
Right. And I think also the popularity of contraception is so great that many people on the conservative side don't really want to take that on. That's not where they want to spend their political capital right now. So they are choosing not to engage in fighting that right now.
So they're both busy pushing the anti-abortion agenda even further, and they see restricting contraception as not really a winning issue because it's so popular. And they're kind of saying it's not worth it to focus on that.
That's true. And also, for some Republicans, you even have right now in some of the Republican states that are banning abortion, some of them are taking small steps to try to expand access to birth control by, say, passing legislation to allow pharmacists to prescribe it or extending Medicaid coverage to certain types of contraceptives.
Explain that to me. Why are Republicans all of a sudden behind expanding contraception?
Well, I think there are some Republicans, not all, but some, who see that if you are extinguishing the right to abortion, you really ought to spend more effort trying to prevent unplanned pregnancies. And logically, of course, if you expand access to contraception, you're going to lower the number of unplanned pregnancies and lower the need for abortion for some people. So there are some people who are connecting those dots, and I think that's part of the landscape here.
It's fascinating. It's like in a country where now abortion is much harder to access, it's becoming harder to make the argument, to thread that needle that you should not be allowed to have an abortion, and you also shouldn't be allowed to help yourself avoid being in the position where you need one.
I think that's true. However, I would also say that, you know, certainly you don't see a lot of Republican leaders at the national level coming out and championing contraception in the same way that Democrats are. You know, some of the support is sort of support by not voicing opposition rather than coming out and saying, this is an issue we want to get behind and we want to really expand contraception access.
Okay, understood. Pam, I just want to reflect for a moment on what feels like a really remarkable moment that we're in, which is that, at the same time as anti-abortion groups have won this huge victory in overturning Roe v. Wade and abortion access is withering away in many parts of the country, we also have the exact opposite thing happening with the pill. It's now going to be available over the counter. It just feels hard to understand how these two things are happening at the same time.
How do you interpret that?
I think it's the kind of thing that sounds like a huge contradiction, but is actually very logical when you consider how these issues work kind of together and how they play off one another. When you have one side having a big loss in terms of access to abortion, then you have them really getting energized and throwing everything that they can behind getting a win. So the stakes are very high. They are putting everything they can behind getting a win on those stakes, and you have a situation where, unlike what we were talking about before, where there was a time when this issue was getting drowned out by a lot of reproductive health issues, right now this is actually an issue that people are paying attention to. So the removal of guaranteed access to abortion has made people focus a lot more on other things like contraception.
In a sense, the timing was right for this kind of decision to happen.
That makes me wonder what's going to happen now. How transformative do you think this move to make birth control available without a prescription will be for women?
The big question is going to be how much will this pill cost and will people be able to afford it? We are waiting for the company to set a price. We're waiting to see whether insurance will be required to cover it. So affordability here is really key. If that happens, then I think it will be really transformative, because the people who really need this kind of access to the pill are going to be young women, teenagers, women living in poor communities, in rural communities, where it's really challenging to find the time and spend the money to travel to see a doctor or go to a clinic for a prescription.
This pill is going to be available at the gas station, at a convenience store, on just a shelf next to the aspirin, on Amazon. Wow. And so, if the price is right, I think that will increase access for an awful lot of women.
And given where this whole story started in the 1950s, it's really kind of remarkable that we are now in an era where birth control pill can be available right off the shelf.
Pam, thank you.
Thank you.
We'll be right back.
Here's what else you need to know. today. In a sign that former President Donald Trump is likely to be indicted for a third time, he has received a letter from the Justice Department saying that he's the target of a federal investigation into his efforts to overturn the 2020 election. The letter means that prosecutors have gathered substantial evidence linking Trump to a crime, but it does not guarantee that he will be charged. And so far, it's unclear exactly what those charges might be.
Trump repeatedly sought ways to hold on to power after losing the 2020 election, including by making false claims of election fraud, pressuring local officials to find him more votes, and inviting his supporters to march to the U.S. Capitol. on January 6th. And on Tuesday, North Korea detained an American soldier who crossed into the country without authorization. The Times reports that the soldier was on a tour of the heavily guarded security zone between North and South Korea when he broke away from the tour group and ran across the border.
The U.S., which has no diplomatic relationship with North Korea, is now working with North Korea's military to negotiate the soldier's release.
Today's episode was produced by Luke Van Der, Ploeg, Mujhzadi, and Carlos Prieto. It was edited by Paige Cowett, contains original music by Marion Lozano, and was engineered by Alyssa Moxley. Our theme music is by Jim Brunberg and Ben Landsberg of Wonderly.
That's it for The Daily. I'm Natalie Kitroeff. See you tomorrow.
you.
v1.0.0.260408-1-a910ba6_os