The arguments come just a week after Health and Human Services Secretary Kathleen Sebelius overruled scientists at the Food and Drug Administration and announced that the pills would only be available without prescription to those 17 and older who can prove their age. President Barack Obama said he supported the decision regarding a pill that can prevent pregnancy if taken soon enough after unprotected sex.
The Center for Reproductive Rights and other groups have argued that contraceptives are being held to a different and non-scientific standard than other drugs and that politics has played a role in decision making. Social conservatives have said the pill is tantamount to abortion.
Judge Edward Korman was highly critical of the government's handling of the issue when he ordered the FDA two years ago to let 17-year-olds obtain the medication. At the time, he accused the government of letting "political considerations, delays and implausible justifications for decision-making" cloud the approval process.
In court papers prior to Wednesday's hearing, Assistant U.S.
Attorney Scott Landau said the government had complied with Korman's orders by lowering the cutoff for over-the-counter sales of the drug from 18 to 17.
He said the plaintiffs "unfairly accuse FDA of bad faith and delay."
In deciding to limit the over-the-counter availability of the drug, Sebelius said she had concluded that the data submitted for the pill did not establish that prescription dispensing requirements should be eliminated for all ages.
She said the studies submitted to the government did not include data on all ages.
"Yet, it is commonly understood that there are significant cognitive and behavioral differences between older adolescent girls and the youngest girls of reproductive age, which I believe are relevant to making this determination as to non-prescription availability of this product for all ages," she said.
