Plan B and the Department of Justice

Hello readers! Did you take my advice from last week and follow the news? If not, I want to point out that, on April 30, the Food and Drug Administration announced that “it would make the most widely known morning-after pill available without a prescription to girls and women ages 15 and older, and also make the pill available on drugstore shelves, instead of keeping it locked up behind pharmacy counters” (from The New York Times). Sound familiar? Maybe it’s because one of the cases I reported on last week, Tummino v. Hamburg, was about this exact issue.

In Tummino, decided April 4, Judge Edward R. Korman ruled that the Obama administration was required to lift age restrictions for morning-after pills such as Plan B. Prior to the FDA’s new rule, Plan B was only accessible for without a prescription for girls and women 17 and older. Now, under the new rule, any woman 15 or older can buy Plan B without a prescription. The FDA also stated that Plan B will be available “in drugstore aisles where family planning or women’s health products are displayed.” Interestingly, though, the FDA did not mention Judge Korman’s ruling, which T

he New York Times calls “scathing” because Korman “said the Obama administration had put politics before science in restricting access to the drug.” In his decision, Korman argues that all women, regardless of age, should have access to morning-after pills such as Plan B; the FDA’s new rule blatantly disregards this ruling because, while the age of access was lowered from 17 to 15 years old, there is still an age restriction in obtaining the Plan B pill.

If you’re anything like me, the FDA’s violation of Korman’s ruling should have you saying, “Wait, hang on a minute,” because it doesn’t make much sense. If a judge ruled that the morning-after pill should be available without a prescription to girls and women of all ages, why didn’t the FDA release a rule complying with that decision? Why, instead, did it adopt this new 15-and-over policy? The FDA even went to far as to “insist that its move to allow access to fifteen- and sixteen-year-olds for the first time was independent of the judge’s latest decision” (from SCOTUSblog), which is a pretty bold move. What’s happening here? Well, put simply, the Obama administration is actively trying to overturn Korman’s ruling, and the FDA wanted to comply with the Department of Justice’s plans.

The day after the FDA announced its new rule, the Justice Department revealed that it would be appealing Korman’s decision for two different reasons. As SCOTUSblog’s Lyle Denniston reports, the Justice Department believes that Korman “had no authority to order access to Plan B” because he “only had before him a public petition related to Plan B access.” Also, Korman “had no authority to issue a direct marketing order, but should have sent the case back to the FDA” before making such a sweeping decision. Tomorrow, May 7, federal lawyers will formally ask Judge Korman to “put on hold his decision” while they prepare an appeal; the Justice Department needs the decision to be delayed because otherwise, Korman’s opinion mandates that the FDA “lift all restrictions on retail sales of at least one of two current versions of Plan B” by today, Wednesday, May 8. Korman has said that, if he does not decide of his own accord to delay the decision, “he will give the administration time to ask the Second Circuit Court to delay his ruling.”

Considering the relatively small amount of attention that Tummino originally garnered, the case has suddenly become very important. As I said last week, the debate about whether Plan B is a contraceptive or a type of abortion speaks to the wider social issue of women’s reproductive rights in the United States, and the Obama administration’s attitude in light of Tummino makes me nervous. Judge Korman’s opinion was well reasoned, and his point that the FDA’s Plan B age-limit rules are largely political instead of actually backed by medical research is salient. Obama has toed the line on birth control and contraception for some time, and the Justice Department’s choice to fight Tummino proves that the president will once again take the middle road and try to compromise (how long did it take him to endorse same-sex marriage?) instead of decisively picking a side in an important social debate.

By the time this article is published, there will most certainly be more news on the Justice Department’s appeal of Tummino and Judge Korman’s opinion. You can be sure that I’ll do my best to keep you updated, but in the meantime please pay attention to this significant set of proceedings.