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Plan B battle shifts to states

THE BALTIMORE SUN

WASHINGTON -- Maryland and more than a dozen other states are at the center of an intensified state-by-state skirmish this year over sales of the "morning-after" birth control pill.

The battles in Annapolis and other state capitals are the result of the Food and Drug Administration's inaction for more than five years on requests to let women buy the pills without a prescription.

Stymied in Washington, women's rights groups have turned to the states.

"The FDA hasn't taken action - that's the problem," said Ariana Kelly, executive director of NARAL Pro-Choice Maryland, an abortion-rights group.

If activists such as Kelly are successful in Maryland, a teen who has unprotected sex on Friday night could go to a pharmacy on Saturday morning and buy two pills containing a high dosage of birth control. If she takes them within 72 hours, she would have an 89 percent chance of not becoming pregnant, the manufacturer says.

Opponents, who say use of the pill by teenage girls could lead to the spread of sexually transmitted diseases by encouraging unprotected sex, criticize the state initiatives as an attempt to make an end-run around federal regulators.

Wendy Wright of Concerned Women for America assailed the state legislative efforts for politicizing women's health. Wright described the push as a bid to reclaim support lost in the debate over a late-term abortion procedure.

"The partial-birth abortion debate has moved public opinion in our direction," Wright said. "This is abortion-rights groups trying to get on the offensive and claiming they are reducing abortions."

Under the proposed Maryland law, pharmacists who volunteer to receive special training may dispense the pills. The law does not require all pharmacists to furnish the pills, and the State Board of Pharmacy estimated 5 percent of Maryland's 5,331 licensed pharmacists would initially participate.

Legislation in other states would allow pharmacists to provide Plan B directly to women under an agreement with a doctor giving the pharmacist blanket permission to sell the drug or require emergency rooms to provide it to rape victims, said Elizabeth Nash, a public policy associate at the Guttmacher Institute, an abortion-rights group that is tracking the efforts.

Abortion-rights groups have been lobbying state lawmakers to increase access to the morning-after pill since 2000, and 16 states, including California, have passed laws that do so in some form.

The Bush administration had promised after the nomination last year of Dr. Lester M. Crawford as FDA commissioner to make a decision by Sept. 1 on allowing over-the-counter sales to those 17 and older. But after his confirmation in July, Crawford, who resigned two months later, announced that the agency would need additional time to study the issue.

The FDA's inaction gave this year's legislative battles new momentum, activists on both sides say.

Jody Ruskamp-Hatz, a policy specialist at the National Conference of State Legislatures, said that this has been an "extremely high year for [Plan B] bills being introduced."

"We are frustrated," said Jennifer Miller, chairwoman of Choice New Jersey, a coalition of abortion-rights groups that is pushing the measure. "If the FDA isn't going to take any action, it's up to us in the states to take action."

In 1999, the FDA approved Plan B's sale with a prescription. Two years later, abortion-rights groups filed their first request for over-the-counter sales. Since 2003, the agency has been considering whether to allow sales to those 16 and older; subsequently changed to those 17 and older.

Agency staff and scientific advisers have recommended approval.

While some activists argue that the pill will reduce unwanted pregnancies and abortions, others assert that the pill effectively causes an abortion.

Abortion opponents are fighting the efforts of Plan B supporters by proposing measures in Illinois, Michigan and 13 other states that would permit pharmacists to refuse to fill a prescription because it violates their beliefs. Four states - Arkansas, Georgia, Mississippi and South Dakota - already have such laws on the books.

Ed Martin, a lawyer and lobbyist for Americans United for Life in St. Louis, said the "rights of conscience" measures provide an opportunity to shift the discussion to preserving the traditional leeway afforded doctors, nurses and pharmacists to exercise their judgment.

"It's a very difficult playing field to be on: The American public is saying, 'Contraception - don't be too uptight,'" Martin said. "On the other hand, it's a chance for us to talk about what health care means, the role of conscience. There are teachable moments in this."

Among the 16 states considering measures to ease Plan B access this year are Missouri and Kentucky, whose legislatures are not expected to approve the proposals. But activists who mounted unsuccessful efforts in previous years say that even failure can have a silver lining.

"Every time the bill moved forward, and there was another story in the paper, that was one more woman who learned about emergency contraception," said Jessie Danielson, political director of NARAL Pro-Choice Colorado, which has pushed proposals since 2003.

Last year, the Colorado General Assembly passed a bill that would have allowed emergency rooms to provide information on the morning-after pill to rape victims, but the governor vetoed the measure. Nevertheless, Danielson said, public support rose.

Awareness has increased as well. A national poll by the Kaiser Family Foundation in 2004 found that 64 percent of women surveyed knew there was something they could do to prevent pregnancy after sex, up from 51 percent in 2000.

Sales of the drug have also increased. Prescriptions have doubled over the past two years to more than 1.2 million, according to Barr Laboratories Inc., the Woodcliff Lake, N.J., manufacturer.

In Illinois, Democratic Gov. Rod R. Blagojevich issued an emergency rule last year ordering all pharmacies to sell the morning-after pill after a pharmacist refused to fill the prescriptions of two women. This year, the Illinois General Assembly is considering competing bills to either enact the rule as law or undo it.

Barr Laboratories has quietly provided support in some states, activists said. It hired a lobbying firm and furnishes technical information about the pill and refers staff or pharmacists to testify at state hearings, according to Destiny Lopez, vice president of programs at NARAL Pro-Choice New York, who works with activists in other states.

A Barr spokeswoman did not respond to a request for comment about any support the company might offer.

Members of abortion-rights groups around the country say they make sure whenever buttonholing state legislators or testifying at hearings to describe the morning-after pill as an emergency contraceptive. They also argue that it would reduce abortions.

The message allows the groups to appeal to those who support the right to abortion but would prefer its use to be limited, said Amanda Kreps-Long, director of the ACLU of Kentucky Reproductive Freedom Project.

"Having emergency contraception as a topic is a way to bring that message home," Long said. "But we still have a long way to go. I mean, I still have people who confuse Plan B with RU-486," the abortion pill developed in France.

Last year, two states, Massachusetts and New Hampshire, passed laws allowing specially trained pharmacists to provide the morning-after pill without a prescription. The New York Legislature also approved a bill, but Republican Gov. George E. Pataki vetoed it.

Some abortion-rights activists expect it will be equally difficult to convince lawmakers this year, especially with many state elections looming.

"That frustrates me as much as the FDA's indecision," said Wendy Royalty, who has spent three years lobbying Maryland legislators on behalf of Planned Parenthood of Maryland.

Jonathan.rockoff@baltsun.com

Sun researcher Paul McCardell contributed to this article.

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