A federal judge has overruled an Obama administration rule that forbid the sale of emergency contraception — the morning-after pill — to girls under 17 without a prescription. Judge Edward Korman, a Reagan appointee, said the rule was the result of “a strong showing of bad faith and improper political influence.” You can read the full ruling here.
The complaint asserted that the FDA’s denial of the Citizen Petition, which it considered along with a number of proposals regarding over-the-counter access to emergency contraception submitted by Plan B’s sponsor, was arbitrary and capricious because it was not the result of reasoned and good faith agency decision-making. In a prior opinion, I concluded that the plaintiffs were right.
The commissioner of the FDA had recommended that Plan B contraception be made available without a prescription to women or all ages, saying “there is adequate and reasonable, well-supported, and science-based evidence that Plan B One-Step is safe and effective and should be approved for nonprescription use for all females of child-bearing potential.” But Secretary of Health and Human Services Kathleen Sebelius disagreed with that decision and overruled it and President Obama supported her decision. Press Secretary Jay Carney repeated after this ruling that President Obama still supported the decision not to make it available to those under 17. The judge noted that and showed why it was wrong:
The President endorsed this decision, explaining that “the reason [Secretary Sebelius] made this decision was she could not be confident that a 10-year-old or an 11-year-old go into a drugstore, should be able—alongside bubble gum or batteries—be able to buy a medication that potentially, if not used properly, could end up having an adverse effect.” The reader will observe that Secretary Sebelius did not say that, “if not used properly,” levonorgestrel-based emergency contraception could have an “adverse effect” on the youngest girls of reproductive age, nor did she include within that group girls as young as 10. Indeed, the drug is currently available to the youngest girls of reproductive age with a prescription.
This case is not about the potential misuse of Plan B by 11-year-olds. These emergency contraceptives would be among the safest drugs sold over-the-counter, the number of 11-year olds using these drugs is likely to be miniscule, the FDA permits drugs that it has found to be unsafe for the pediatric population to be sold over-the-counter subject only to labeling restrictions, and its point-of-sale restriction on this safe drug is likewise inconsistent with its policy and the Food, Drug, and Cosmetic Act as it has been construed. Instead, the invocation of the adverse effect of Plan B on 11-year-olds is an excuse to deprive the overwhelming majority of women of their right to obtain contraceptives without unjustified and burdensome restrictions.
I can’t wait to see how the wingnuts blame Obama for this. And I really wonder whether Obama will appeal the ruling or let it stand. If he appeals it, there’s a good chance it would get overturned. If he doesn’t, the ruling stands and this form of contraception would be more widely available.