UPDATE 5/13/13: Cutting it close to deadline, the Obama administration has filed an appeal to delay sale of emergency contraception over the counter to all ages. Stay tuned.
UPDATE 5/10/13: Judge Korman refused to put on hold his order to make EC available over the counter to all ages. He has extended the implementation of his order until Monday at noon in order to allow time for the Obama administration to appeal to the 2nd U.S. Circuit Court of Appeals in Manhattan. In the decision, Korman said the government’s choices in this issue have been “largely an insult to the intelligence of women.”
After District Court Judge Edward Korman’s order last month that the Food and Drug Administration must provide emergency contraception over the counter to all ages was appealed last week by the Department of Justice, he got a chance to respond Tuesday morning.
In the two-hour hearing, the Obama administration defended its stance while Korman argued the administration’s policy is based on politics rather than on scientific evidence. Korman said,
It turns out that the same policies that President Bush followed were followed by President Obama.
The FDA announced last week that it would be loosening restrictions on Plan B One-Step—now allowing Plan B One-Step to be sold over the counter and to those ages 15 and older, rather than the previous regulation of 17 and older—and that its decision was independent of Korman’s order. However, on Tuesday, Korman accused the Department of Justice of using the FDA’s new regulations to “sugarcoat” its appeal of Korman’s order.
The FDA decided in 2011 that EC would be available over the counter to all ages, but in December of that year Kathleen Sebelius, the secretary of Health and Human Services, blocked the decision, saying there was not enough information to prove EC was safe for all ages. When Korman overruled Sebelius’ decision last month, he called her decision “politically motivated, scientifically unjustified and contrary to agency precedent.”
In response to the Department of Justice’s appeal of his order, Korman says:
The irony is that I would be allowing what the FDA wanted. This has got to be one of the most unusual administrative law cases I have ever seen … I would have thought that on the day I handed down my decision, they would be drinking champagne at the FDA.
A large part of Korman’s overall argument, and one he presented Tuesday morning, was that restricting EC by requiring a form of photo ID excludes a large part of the population—specifically, minorities and immigrants. Of the U.S. population that is of voting age, 11 percent don’t have a government-issued photo ID. That impact proves to be greater on minorities—9 percent of whites don’t have photo IDs while 16 percent of Latino Americans and 25 percent of African Americans don’t have them. Korman argues,
You’re disadvantaging young people, African-Americans, the poor—that’s the policy of the Obama administration?
Nancy Northup, president and CEO of the Center for Reproductive Rights, also believes the lessened restrictions are not sufficient. She said:
Lowering the age restriction … may reduce delays for some young women—but it does nothing to address the significant barriers that far too many women of all ages will still find if they arrive at the drugstore without identification or after the pharmacy gates have been closed for the night or weekend.
These are daunting and sometimes insurmountable hoops women are forced to jump through in time-sensitive circumstances …
Frank Amanat, a representative to the Obama administration, said making EC an over-the-counter drug was unprecedented and that public interest was best served when “the government acts deliberately and incrementally.” To which Korman sarcastically replied:
Tell me about the public interest. Is there a public interest in unplanned pregnancies? Some of which end in abortions?
Korman is due to rule on the administration’s request for a stay before the end of this week. Based on his previous stance and his impassioned reaction Tuesday morning, most likely Korman will deny it and defer the enforcement of the stay to the Court of Appeals for the Second Circuit (where it could then be deferred to the U.S. Supreme Court for a final decision).