Article: Women/Reproductive Rights
Source: NY Times
http://www.nytimes.com/2013/05/11/health/judge-refuses-to-drop-order-on-contraceptive-pill-without-regard-to-age.html?nl=todaysheadlines&emc=edit_th_20130511
Judge Refuses to Drop His Order Allowing Morning-After Pill for All Ages
By MICHAEL D. SHEAR
Published: May 10, 2013 214 Comments
WASHINGTON — A federal judge on Friday stepped up his criticism of the Obama administration, accusing the Justice Department of making “frivolous” and “silly” arguments in its attempt to delay making the morning-after emergency contraceptive pill available to women and girls of all ages without a prescription.
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Judge Edward R. Korman of the United States District Court for the Eastern District of New York ordered last month that the drug be made widely available and said that raw politics — not scientific evidence — was behind efforts by Kathleen Sebelius, the secretary of health and human services, to block easier distribution to young girls.
On Friday, he denied the request by government lawyers to suspend his ruling while they appeal. In the process, he lashed out again at Ms. Sebelius in unusually harsh terms, questioning her credibility and integrity.
“If a stay is granted, it will allow the bad-faith, politically motivated decision of Secretary Sebelius, who lacks any medical or scientific expertise, to prevail — thus justifiably undermining the public’s confidence in the drug approval process,” Judge Korman wrote.
Officials at the Justice Department and the Department of Health and Human Services declined to comment on Judge Korman’s ruling, citing the continuing legal case.
The issue of how broadly to distribute the morning-after pill is a politically charged one that puts President Obama’s administration at the center of a clash involving some women’s rights groups, conservative opponents of abortion and defenders of scientific integrity.
In Friday’s ruling, Judge Korman said that the government’s appeal of his order was nothing more than an attempt to “vindicate the improper conduct of the secretary.”
Andrea Costello, a lawyer for the Partnership for Civil Justice Fund and counsel to plaintiffs in the case before Judge Korman, agreed with him, saying that “this is politics at its worst and the administration should be ashamed of its duplicitous conduct.”
Judge Korman postponed the enforcement of his order until Monday to allow lawyers for the Justice Department to take their request for a delay to the appeals court. If the government ultimately fails to secure a suspension of Judge Korman’s order, it would clear the path for over-the-counter sales of the morning-after pill to very young girls, an outcome that the Obama administration has tried to block.
In 2011, Ms. Sebelius overruled a decision by the Food and Drug Administration to allow the drug to be sold without a prescription to anyone. Instead, she required that the drug be kept behind the counter at pharmacies and sold without a prescription only to women 17 and older.
Last week, the F.D.A. approved a change in that rule that would allow women and girls 15 and older to buy the drug without a prescription. At a hearing last week, Judge Korman said that decision was politically motivated and intended to “sugarcoat” the government’s appeal. He indicated he believed the drug should be made more widely available.
Judge Korman’s rulings have been filled with harsh criticism of Ms. Sebelius and the administration’s legal efforts to defend her decision. Friday’s ruling on the request for a delay in the enforcement of his order was no exception.
The judge repeatedly accused the government of operating in bad faith and said the process of denying broad distribution of the drug had been “corrupted by political interference” for years. He said he did not believe that ordering Ms. Sebelius or the F.D.A. to re-examine their decisions would make any difference.
“The cause of the rejection of over-the-counter sale of levonorgestrel-based emergency contraceptives was the secretary of health and human services,” Judge Korman wrote. “She has not changed her position. A remand would thus be futile. More significantly, I have been there and done that.”
“Indeed, in my view, the defendants’ appeal is frivolous and is taken for the purpose of delay,” he wrote.
At one point in his ruling, Judge Korman notes that lawyers for the administration insist that allowing over-the-counter access to the drug for everyone while the government appeals the case would mean “uncertainty” for girls and women about whether they could get the drug.
The judge rejected that argument out of hand, saying that “this silly argument ignores the fact it is the government’s appeal from the order that sustained the judgment of the commissioner of the F.D.A. that is the cause of any uncertainty, and that that appeal is taken solely to vindicate the improper conduct of the secretary and possibly for the purpose of further delaying greater access to emergency contraceptives for purely political reasons.”
He also rejected the government’s argument that women might be confused about the drug’s availability if it was made available to everyone without a prescription and then later restricted because the government won its appeal.
Judge Korman called that argument “largely an insult to the intelligence of women.”
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