Carroll Gardens resident Annie Tummino knows that if you’re going to pick a fight, it’s wise to choose a worthy adversary. So she has. The 26-year-old feminist activist is the lead plaintiff in Tummino v. von Eschenbach, a lawsuit challenging the Food and Drug Administration’s refusal to make Emergency Contraception (EC)—or the Morning After Pill (MAP)—available over-the-counter.

The lawsuit, filed by the Center for Reproductive Rights in January 2005, is presently in the discovery phase and by all accounts is moving slowly. That is why Tummino is also involved with the Women’s Liberation Birth Control Project (WLBCP), part of a national network known as the “Morning After Pill Conspiracy.”

Conspirators—the New York City-based WLBCP; Gainesville, Florida NOW’s Young Feminist Task Force; Gainesville Women’s Liberation; and Utah NOW’s Young Feminist Task Force, among them—have organized demonstrations, sit-ins and speak-outs to push for over-the-counter (OTC) access to EC, and they have risked arrest by distributing EC pill packets to women desiring them.

“We’re acting in the tradition of Margaret Sanger, who gave out information on birth control when it was illegal,” Tummino says. “We, like Sanger, believe we are breaking an unjust law.”

Tummino’s convictions began brewing in 2002 when she was hired to work as a counselor at Planned Parenthood of Western Massachusetts. “Before I worked there I didn’t know much about EC,” she says. “I had heard of MAP but wasn’t really sure what it was or how it worked.” The job provided Tummino a crash-course on the subject. “I soon realized that there were no side effects for the women who took the Morning After Pill. It seemed ridiculous that they had to make an appointment to see us, pay for an office visit, then pay for the pills, when in other countries they could just go into a pharmacy and buy EC off a shelf. I felt really bad for the women I counseled because they had to go through this extreme hassle just to get these drugs.”

Then, in 2004, Tummino had a pregnancy scare of her own. After a contraceptive mishap while vacationing, she recalls feeling desperate. “I was freaking out. I was back home, in New York, but my boss was out so I couldn’t call in sick that day. Luckily, when I looked online I found www.not-2-late.com, a hotline run by doctors. I contacted them and after a five-minute conversation with a counselor, they called in a prescription for Plan B Emergency Contraception. A few hours later, I went to the drug store, picked up two pills, and took them. My period came a bit earlier than normal but it was nothing unusual. I knew I was lucky to get Plan B but it showed me how much crap and panic, and how much rearranging of life, goes on when the Morning After Pill is not available over-the-counter.”

Emergency contraception, itself, is not controversial: it was approved by the FDA in 1999, and has been available by prescription ever since. According to MayoClinic.com, “Human conception rarely occurs immediately after intercourse. Instead, it occurs as long as several days later, after ovulation. During the time between intercourse and conception, sperm travels through the fallopian tubes until the egg appears.”

EC prevents sperm from reaching the egg and keeps the fertilized egg from attaching to the uterine wall if it is taken within 72 hours of having unprotected sex. So timing is everything. And therein lies the problem with the prescription mandate: Those without a family doctor, or young teenagers, are often unable to find an EC provider as quickly as they need to. More often than not this leads to a more costly surgical abortion later in the pregnancy.

Tummino v. von Eschenbach hopes to change this. According to the complaint, “Limiting EC to prescription use is not necessary for the protection of public health…Its administration is simple and relies on an assessment as to time elapsed since sexual intercourse…The condition EC treats—contraceptive failure or the failure to use contraception during intercourse—is one that is readily diagnosable by a woman.” What’s more, the lawsuit charges that decades of scientific research have demonstrated that the Morning After Pill is both effective and safe and cites an FDA panel that was ignored after it recommended that EC be given OTC status in 2003.

Carol Cox, a spokeswoman for Barr Pharmaceuticals, owners of the patent for the popular Plan B brand of EC, notes that EC is available in 102 countries and is sold over-the-counter in 34. She is somewhat heartened, she says, that several states—Alaska, California, Hawaii, Maine, New Hampshire, New Mexico, and Washington—have opted to make the Morning After Pill available without a prescription, but cautions that the situation in these locales is still far from ideal.

“Pharmacy laws vary from state to state and the Board of Pharmacy in each place decides what it will do. In each of the locations where it is available without a prescription, the state requires pharmacists to attend training seminars and be certified before they can give it out,” she says. “This means that not every pharmacy in a particular state will be able to distribute EC. In most places the pharmacist learns the questions to ask to make sure the woman is a good candidate for the pills. In no state can a woman get EC without the Q and A. If EC was sold over-the-counter, she would not need to talk to a pharmacist or get a prescription. She would just pick up a package, read it, take the pills, and not have to worry about an unwanted pregnancy.”

“Having EC behind-the-counter, instead of over-the-counter, makes it seem sleazy,” says Tummino. “Even if a woman is technically able to get EC without a prescription, she shouldn’t have to ask a stranger for it. Some people have suggested that there should be age restrictions so that young women speak to someone before getting EC. We believe that if you’re old enough to get pregnant, you’re old enough to decide not to have a baby.”

More than 70 U.S. groups including the American Public Health Association, the National Black Women’s Health Project, the American Medical Association, and the Planned Parenthood Federation of America, concur and have petitioned the FDA, arguing that it is in the interest of public health to make EC as easy to obtain as Tylenol or Robitussin. But despite their outcry—and the reams of paper and hours of testimony they have offered—the FDA has continued to hem and haw on the issue.

Annie Tummino and her co-plaintiffs blame the Bush administration’s vitriolic anti-choice politics for the FDA’s stonewalling. “The Bush administration is trying to take us back to the 18th century and is trying to make contraception seem controversial,” Tummino says. “That is why we need a grassroots movement to demand MAP. Roe didn’t happen just because a bunch of judges decided a case. It happened because there was a strong group of women demanding legal abortion.”

The toll-free hotline Tummino called, 1-888-not-2-late, is administered by the Association of Reproductive Health Professionals (ARHP) and is available 24-hours. Spanish and English speaking counselors are available to discuss EC and phone prescriptions into a pharmacy near the caller’s home. A companion website, www.not-2-late.com, offers similar information in Arabic, English, French, and Spanish.

Eleanor Bader is a regular contributor to The Rail.