Obama Administration Appeals Ruling On Morning After Pill

The Obama Administration announced late yesterday that it would be appealing a decision issued last month voiding an FDA rule that restricted non-prescription use of the morning after pill to women over 17:

The Obama administration moved Wednesday to keep girls under 15 from having over-the-counter access to morning-after pills, as the Justice Department filed a notice to appeal a judge’s order that would make the drug available without a prescription for girls and women of all ages.

The appeal reaffirms an election-year decision by Mr. Obama’s administration to block the drug’s maker from selling it without a prescription or consideration of age, and puts the White House back into the politically charged issue of access to emergency contraception.

The Justice Department’s decision to appeal is in line with the views of dozens of conservative, anti-abortion groups who do not want contraceptives made available to young girls. But the decision was criticized by advocates for women’s reproductive health and abortion rights who cite years of scientific research saying the drug is safe and effective for all ages.

“Age barriers to emergency contraception are not supported by science, and they should be eliminated,” Cecile Richards, the president of Planned Parenthood Federation of America, said in a statement on Wednesday.

In December 2011 the secretary of health and human services, Kathleen Sebelius, blocked the sale of the drug to young girls without a prescription, saying there was not enough data to prove it would be safe. In doing so, Ms. Sebelius took the unprecedented step of overruling the Food and Drug Administration, which had moved, based on scientific research, to lift all age restrictions.

Last month, Judge Edward R. Korman of United States District Court for the Eastern District of New York criticized that decision as overtly political and ordered the administration to make the contraceptive widely available. The Justice Department’s appeal will not say at what age girls should have access to over-the-counter morning-after pill.

Instead, it will contend that Judge Korman did not have the authority to order the F.D.A. to take a specific action and should have sent the issue back to the agency for further action. And it will say the judge did not have the right to extend his order to versions of the pill not included in the lawsuit.

The decision to appeal is striking in part because, before Ms. Sebelius overruled it in 2011, the F.D.A. — the Justice Department’s client in this case — had moved to do exactly what Judge Korman ordered last month.

“We aren’t focused in this appeal on the merits of the secretary’s decision,” said a Justice Department official, who spoke on condition of anonymity. “What we’re focused on is that the remedies that the judge ordered were beyond his authority.”

For Mr. Obama’s administration, the decision to appeal the judge’s ruling provides an opportunity to reaffirm a moderate position in the broader abortion debate that had drawn praise from conservative groups that are normally highly critical of the president.

The appeal also reinforces Ms. Sebelius’s original 2011 decision, which proved to be very good politics for Mr. Obama at the time. Facing a difficult re-election battle, the Democratic president enthusiastically supported Ms. Sebelius, saying that as a father of two young daughters, he thought it was the right call to have made.

This isn’t entirely surprising. It was unlikely that the Administration was going to let a District Court opinion be the final say on a rule with nationwide implications. Additionally, as I noted yesterday, the FDA has already announced that it was changing policy to making drugs like this more widely available.

FILED UNDER: Health Care, Law and the Courts, Quick Takes, US Politics
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed for too young in July 2021.

Comments

  1. edmondo says:

    He really is a Republican, isn’t he? This doesn’t bode well for getting his base out in 2014.

  2. Ben says:

    Man, what a far-left hyper-progressive he is!!! Oh wait.

    This kind of shit really annoys me. It’s blatantly counter to all of the science and data we have. It’s not like he has to face election again. The only explanation I can think of is that this is more about a turf war, trying to limit the judiciary’s power to dictate his agencies’ regs to them.

  3. edmondo says:

    @Ben:

    So a pregnant 16 year old needs to undergo an abortion because Obama’s pissed at the federal judiciary? Who says Obama is detached?

  4. Ben says:

    @edmondo:

    1.) No one needs to do anything. This is about letting teenage girls have a choice in this situation. Getting a prescription can often take too long for Plan B to even be an option to prevent a pregnancy from beginning, and requiring parental notification can be a very bad thing in some circumstances. All delaying the choice does is ensure that the girl WILL need an abortion, rather than simply taking a pill. Which is a better outcome in your mind?

    2.) I (and most medical professionals) don’t consider Plan B to be “an abortion”. This prevents the egg from ever implanting in the uterine wall. Do you have any idea how many fertilized eggs never implant on their own in an average woman’s life? It is not a physically traumatic event and the woman never even knows that it was fertilized.

  5. edmondo says:

    @Ben:

    Plan B is not an abortion – No kidding Sherlock!

    Maybe you should tell that to Obama because his delay in allowing Plan B to go over the counter is going to cause more unplanned pregnancies that will result in more abortions

  6. stonetools says:

    @Ben: @edmondo:

    You guys need to quit the liberal wankery and think about what a REPUBLICAN administration would do with Plan B, i.e. try to ban it from use altogether. I’m sick and tired of the “Obama is a RINO” bullsh*t. Grow up and understand what the real world options are.

    the FDA has already announced that it was changing policy to making drugs like this more widely available.

    Got that? The FDA is making Plan B more widely available, albeit in a more cautious way than liberals would like. They are being more cautious because they don’t want the Republicans winning the Senate on a slogan of “the Democrats want your 12 year old daughters to be allowed to get abortion drugs over the counter without your knowledge”.

    You need to think about the larger implications of this stuff and not make the usual liberal mistake of thinking that the American public is on board with the liberal view of child rearing and teenage sex. They definitely aren’t, and it’s political malpractice to ignore that.

  7. PD Shaw says:

    The decision presumably hurts the administration in other areas of public health, safety and the environment, when regulations are drafted under a precautionary principle to protect vulnerable populations such as children or those with pre-existing conditions. I would bet the Sierra Club or someone similar lobbied the Administration to appeal.

  8. edmondo says:

    “Obama is a RINO”

    The truth hurts, doesn’t it?

  9. legion says:

    It was unlikely that the Administration was going to let a District Court opinion be the final say on a rule with nationwide implications.

    That may be, but the district judge was pretty explicit in his lambasting of Secretary Sebelius and the fact that the entire underlying decision by her, overriding the FDA, was based on purely political reasons that had no scientific or medical basis whatsoever. If the next-level judge sees it the same way – especially considering the FDA’s half-assed “you can’t make me” policy change this week – I wouldn’t be surprised to see some sanctions come down.

  10. Ben says:

    @stonetools:

    Science is not liberal wankery.

    And the FDA’s change may expand access in theory. All it did was say that 15 and 16 year-olds can get Plan B OTC, provided that the store verify ID. But how many 15 and 16 year olds have government-issued ID? So in practice, it really didn’t accomplish much.

    And look, I understand that a large portion of this country has insanely puritanical views on sex. But the FDA is not supposed to take policy implications into account when propagating their regs. It’s supposed to start and end with the science. And the science says, there is absolutely no health danger whatsoever to making this pill legal OTC to all ages.

  11. stonetools says:

    @legion:

    If the next-level judge sees it the same way – especially considering the FDA’s half-assed “you can’t make me” policy change this week – I wouldn’t be surprised to see some sanctions come down.

    (Shrug)

    So? The Administration will appeal-all the way to SCOTUS. How is the current Supreme Court likely to come down on this?

    I’ll make it easy for you-there’s every likelihood that SCOTUS, for a variety of reasons, will find for the FDA on this.
    Indeed, oddly enough, a “half-assed ” rule by the FDA may be the best result liberals can hope for. Again, try to imagine if the House Republicans decide to take up the issue, as they well could, if the FDA followed liberals wishes and drafted a rule allowing unrestricted access .

  12. stonetools says:

    @Ben:

    But the FDA is not supposed to take policy implications into account when propagating their regs. It’s supposed to start and end with the science. And the science says, there is absolutely no health danger whatsoever to making this pill legal OTC to all ages.

    I’m glad you live on a planet where the public accepts your view of science and administrative rule-making, and will vote that way, rather than vote based on their own view of parental authority and teenage sex.
    Tell me, what is the name of your planet? I hope to visit there sometime.

  13. Ben says:

    @stonetools:

    Once again, you’re talking about policy decisions based on public opinion. That is not the FDA’s job, and it is beyond their purview. Their job is to test drugs and medications for safety and efficacy and approve or deny them based on that data. Period.

  14. edmondo says:

    @stonetools:

    Once again, in stonetools hyper-partisan world, if Republicans deny science because of political considerations they are troglodytes; when Democrats do the same thing, they are looking out for the long-term benefits of the entire country.

    The DNC must pay this guy by the post.

  15. Ben says:

    BTW edmondo, I totally misread what you were saying earlier in the thread, my bad.

  16. edmondo says:

    @Ben:

    Since when do we read each others’ posts before reacting to them?

  17. stonetools says:

    @Ben:

    Once again, you’re talking about policy decisions based on public opinion. That is not the FDA’s job, and it is beyond their purview. Their job is to test drugs and medications for safety and efficacy and approve or deny them based on that data. Period.

    ITs not all clear that rule-making by federal agencies should exclude policy impications. Indeed, the contrary appears true:

    Common purposes of rulemaking include:
    Adding scientific expertise. For example, in the U.S., the Federal Food, Drug, and Cosmetic Act outlaws the sale of adulterated or impure drugs. The act requires that the Department of Health and Human Services promulgate regulations establishing which laboratory tests to use to test the purity of each drug.
    Adding implementation detail. Legislation on automobile fuel efficiency, for example, often delegates the development of the actual engine tests used to calculate ‘city mileage’ and ‘highway mileage’.
    Adding industry expertise. The U.S. Clean Air Act and Clean Water Act require the United States Environmental Protection Agency to determine the appropriate emissions control technologies on an industry-by-industry basis.
    Adding flexibility. More detailed regulations allow for more nuanced approaches to various conditions than a single legislative standard could. Moreover, regulations tend to be more easily changed as new data or technologies emerge.
    Finding compromise. In some cases, a divided legislature can reach an agreement on a compromise legislative standard, while each side holds out hope that the implementing regulations will be more favorable to its cause.

    Seems that agency rule-making is in the service of a variety of purposes, of which only one is purely about the science.

  18. legion says:

    @stonetools:

    I’ll make it easy for you-there’s every likelihood that SCOTUS, for a variety of reasons, will find for the FDA on this.

    I disagree. My reading of the district opinion was that it was so harsh on Sebelius in particular because the FDA originally did it right – this particular pill is in a certain class of drugs, and by statute the FDA cannot just pick this one med out of that group and treat it differently… All meds in this class don’t require permission, age limits, etc, so Plan B can’t either. Sebelius blatantly violated that statute when she overruled their decision. I think this is the admin’s only straw to grasp at:

    “We aren’t focused in this appeal on the merits of the secretary’s decision,” said a Justice Department official, who spoke on condition of anonymity. “What we’re focused on is that the remedies that the judge ordered were beyond his authority.”

    While SCOTUS could remand it back to the lower court for a more specific remedy, I don’t see even the SCOTUS conservative crowd blessing a clear and direct violation of statute.

  19. stonetools says:

    @edmondo:

    Once again, in stonetools hyper-partisan world,

    So now you’re denying we live in a hyper-partisan world? Seriously, where have you been the last 20 years? Ok, let’s game it out.

    FDA promulgates a rule that Plan B should be made available without limit to all females over the age of 11 , because science says so. The Republicans immediately begin bellowing about Obama letting 11 year olds buy “abortion drugs” without parental notification and about the “danger” of “pedophiles” using these drugs to “come after” your daughters. The liberals respond weakly by talking about “science”, “reality” and “options”. That works about as well as it always does ( like never)and the Republicans ride to victory.

    Come 2017, and you have Senator Ted Cruz submitting the Ant-Abortion Drug and Teenage Protection Act banning Plan B for President Rand Paul’s signature, and clueless liberals wondering what went wrong.

  20. Ben says:

    That’s just a general encyclopedia entry concerning executive rulemaking, and has nothing to do with the FDA’s specific requirements and laws.

    Did you actually read the opinion? He goes into laborious detail about how the FDA’s denial of OTC status for Plan B is blatantly contrary to long-standing FDA precedent and policy.

  21. Rafer Janders says:

    @stonetools:

    No, you’re right. The best thing for liberals to do is to get into a self-protective crouch, hands raised above our heads in meek supplication, and hope that the conservatives won’t kick us. Only if we give them what they want will we be safe.

  22. stonetools says:

    @legion:

    While SCOTUS could remand it back to the lower court for a more specific remedy, I don’t see even the SCOTUS conservative crowd blessing a clear and direct violation of statute.

    But isn’t that the point-the remedy? I see the current SCOTUS giving the agency broad discretion to fashion a rule here. I certainly don’t see this Court ordering the agency to promulgate a rule calling for unlimited access.

  23. stonetools says:

    @Rafer Janders:

    The best thing is for liberals to make policy as if they are in the real world, not as if they are in liberal fantasy world.

  24. Rafer Janders says:

    @stonetools:

    Hey, I’m agreeing with you. The real world, after all, is one that Republicans control, and we just have to go along with what they want. It doesn’t pay to make waves. Get along to go along. Let’s just keep our heads down and hope they don’t notice us.

  25. legion says:

    @stonetools:

    But isn’t that the point-the remedy?

    Maybe, but that’s not what you said… “finding for the FDA” would amount to letting Sebelius’ override stand. Arguing that the court’s remedy in overturning that rule is overly broad is a very different tactic – it also as much as admits that Sebelius’ decision was improper, whic is a key point in any appeal. The fact that the gov’t’s appeal is still going forward, rather than being made moot by the FDA’s rule change yesterday, is evidence that the FDA’s change doesn’t materially address the problems the court found in the first place…

  26. grumpy realist says:

    I think I’m going to chalk this one up to political kabuki….Administration squawking knowing full well they’re going to get slapped on the nose by the courts. At which point they can turn around and say “see? We tried! It was those mean nasty judges who made this stuff available!”

    Either that, or it’s a pure turf battle.

  27. fred says:

    Good for the Obama administration. The Administration keeps getting blamed for the VA backlog. No wonder so many VA officials are jumping ship. People like Rachel Maddox (her father is a vet) and most of the GOP have misplaced their criticism which should be directed at veterans applying for disability. As a former VA employee and veteran the major problem in the VA today is that the GOP has reduced the VA staff and everyone who serves in the military today apparently then thinks they are entitled to disability payments. Wrong. Main reason for the backlog is that applications are incomplete and without proper documentation in most cases. VA employees spend wasted time reviewing these applications and having to tell applicants that they need to send in more documentation to back up their claims. Maddox and mainstream media never focus on this fact as the main reason for the VA backlog. If the majority of applications were complete and in fact warranted the VA backlog would be reduced significantly to under 6 months for review and completed action.