- The Washington Times
Wednesday, May 1, 2013

The Obama administration, under massive pressure from both sides of the culture war over contraception, has decided to appeal a federal court’s order to make a morning-after pill available to everyone without a prescription, just a day after expanding access to the pills for younger teenage girls.

On Wednesday evening, Justice Department officials said they had filed the appeal with the 2nd U.S. Circuit Court of Appeals and also asked a district court to put on hold the early April ruling by Judge Edward Korman of New York that the administration must make Plan B One-Step available without restrictions.

In filing notice with the appeals court, Justice said Judge Korman exceeded his authority in ordering that Plan B and a generic equivalent must be sold to everybody like aspirin by May 5.

“The public interest will not be served by reclassification of drugs as non-prescription by order of a court, without appropriate agency decision-making procedures being followed,” U.S. Attorney Loretta E. Lynch said in a letter to Judge Korman, noting that the government wants to “prevent public uncertainty regarding the status of the drugs at issue.”

“Moreover, if the status of these drugs is changed and later reversed, it can lead to situations in which women mistakenly believe that they can obtain the drug without a prescription or at certain locations where it used to be, but is no longer, available,” Ms. Lynch wrote. “Depending on the outcome of the appeal, the problem would be exacerbated because products with incorrect labeling will presumably remain on pharmacy shelves.”

The appeal was filed one day after the Food and Drug Administration moved to let girls as young as 15 obtain Plan B One-Step, one of the three types of emergency contraception, without a prescription. The current age limit is 17.

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Ms. Lynch said the FDA did not make the change as a direct response to the federal case, but noted that all of the plaintiffs in the pending civil case were at least 15, so none of them would be injured by the decision to cut off access at that age.

The White House said Wednesday, before Justice announced its appeal, that the decision was made entirely by FDA officials.

“This is a decision that the FDA made, and that is appropriate because it’s an independent agency,” White House press secretary Jay Carney said Wednesday. “The president, the White House, did not weigh in on this decision.”

FDA officials said they were just approving a request by the drug’s manufacturer, Teva Women’s Health Inc., and that the decision had nothing to do with the New York case.

That case puts the administration on tenuous ground with both its traditional allies and nemeses in the battle over abortion.

Conservative groups say the government is usurping the role of parents, while groups such as the Planned Parenthood Federation of America and the National Organization for Women say the administration is ignoring scientific evidence that the pill is suitable for all ages.

Judge Edward Korman rebuked Health and Human Services Secretary Kathleen Sebelius for making an “obviously political” decision in 2011 — one year before Mr. Obama’s re-election — to prohibit the sale of Plan B One-Step and its generic forms to girls younger than 17 unless they had a prescription.

Mr. Carney said the president supported Mrs. Sebelius’ decision, which was based on a lack of data regarding the pill’s effects on “younger girls and teens of reproductive age.”

The spokesman drew a distinction between Tuesday’s FDA approval and the judge’s 2011 decision, which was based on “the proposition that this medication could be made available to anyone of any age.”

I. Glenn Cohen, a health policy analyst at Harvard Law School who used to work at the Justice Department, said before the appeal was announced that the decision would likely be a close call. He noted that the administration would want to preserve the executive branch’s right to make these kinds of decisions and to contest the idea that officials abused their discretion in 2011.

Pro-choice forces already had signaled they would not be happy with a decision to appeal.

Andrea Costello, a staff attorney for the Partnership for Civil Justice Fund, who represented the plaintiffs before Judge Korman, accused the Obama administration this week of playing politics and “speaking out of both sides of its mouth when it comes to the basic right of women and girls.”

This is not the first time Mr. Obama and his Cabinet have been hammered over contraception. Conservative lawmakers, churches, religious nonprofit groups and devout business owners are challenging a part of the federal health care law that requires most employer-provided insurance to cover oral contraception and post-intercourse pills such as Plan B and ella, which they equate with abortion.

The Susan B. Anthony List and other pro-life groups sharply rejected Mr. Obama’s attempt in February to divorce religious nonprofits from the mandate. But it took a mixed approach this week, urging the Obama administration to stand by its 2011 decision on Plan B One-Step while rebuking health officials for slackening age restrictions at all.

“The FDA is recklessly positioning itself as a parent to our children,” SBA President Marjorie Dannenfelser said of Tuesday’s FDA decision.

Some political voices were more forgiving. The American College of Obstetricians and Gynecologists applauded the move while reaffirming its position that emergency contraception should be available over-the-counter to people of all ages.

Sen. Patty Murray, Washington Democrat, also deemed it “a step in the right direction” that “moves us closer to these critical availability decisions being based on science, not politics.”

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

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