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Judge Chastises Obama Administration Over Emergency Contraception Appeal; Wash. Post Columnist Weighs In

Judge Chastises Obama Administration Over Emergency Contraception Appeal; Wash. Post Columnist Weighs In

May 8, 2013 — A federal judge on Tuesday lambasted the Obama administration for appealing his ruling that ordered FDA to make emergency contraception available without age or point-of-sale restrictions, the New York Times' "The Caucus" reports (Shear, "The Caucus," New York Times, 5/7).

Last week, the Department of Justice announced an appeal of U.S. District Judge Edward Korman's April 5 ruling and requested a stay on his court order pending results of the appeal. DOJ argued that a stay is needed "to prevent public uncertainty" about the status of EC availability during the appeal process (Women's Health Policy Report, 5/7).

Separately, FDA last Tuesday approved over-the-counter sales of the EC product Plan B One-Step to people ages 15 and older with proof of age (Women's Health Policy Report, 5/1).

Tuesday's Hearing

At the hearing, Korman called FDA's decision to lower the age limit on Plan B One-Step an attempt to "sugarcoat" the appeal in the EC case. He suggested that the appeal could have dire consequences for young women ("The Caucus," New York Times, 5/7).

Korman specifically criticized the proof-of-age requirement, arguing that DOJ is "making an intellectually dishonest argument," given that it wants consumers to show ID to buy the drugs, but the Obama administration opposes voter ID laws. "You're using these 11- and 12-year-olds to place an undue burden on women's ability to access emergency contraception. If it's an impediment to voting, it's an impediment to get the drug," Korman said (Carmon, Salon, 5/7).

The requirement places an "impossible burden" on groups that are less likely to have IDs, the judge said. "The poor, the young and African-Americans are going to be put in the position of not having access to this drug," Korman said, asking, "Is that the policy of the Obama administration?"

Korman also chastised the government for continuing to draw out the case. Assistant U.S. Attorney Franklin Amanat acknowledged that "the court has been frustrated with the pace," but added, "Sometime[s] the people are better served when the government acts deliberately and incrementally" (Hays, AP/KSPR, 5/7).

Korman said he would rule on DOJ's request for a stay by Thursday evening. According to Salon, he is expected to deny the request but defer the stay's enforcement while the case is appealed to the 2nd U.S. Circuit Court of Appeals (Salon, 5/7).

Obama Administration 'Got it Wrong' on EC Decisions, Washington Post Columnist Says

The Obama "administration got it wrong both times" when it continued restrictions on Plan B One-Step access and decided to appeal Korman's ruling in the court case, Washington Post columnist Ruth Marcus writes. She argues that the "age-15 limit sounds more sensible than it is." Any concern about Plan B use by 11-year-olds "is a red herring," as most girls "aren't menstruating" or sexually active at that age, Marcus notes.

"The price of stopping the imaginary 11-year-old from taking Plan B is preventing the actual 14- or 15-year-old from obtaining it," since most teens that age do not have IDs, she writes.

Marcus also contends that the administration should have accepted Korman's initial ruling. "Generally, we don't want judges telling agencies what drugs to approve," but judicial intervention is warranted when an agency behaves "arbitrarily and capriciously, as FDA has done," she argues.

"[T]his debate isn't about the government coming between parents and children, or society condoning teen sex," she writes, concluding, "It's about preventing teen pregnancy" (Marcus, Washington Post, 5/7).