- The Washington Times
Monday, May 13, 2013

The Obama administration on Monday asked an appeals panel to delay the enforcement of a federal judge’s order to make emergency contraceptive available to women of all ages without a prescription.

Attorneys from the Justice Department made their pitch to the 2nd Circuit Court of Appeals by noon, a deadline set by U.S. District Court Judge Edward Korman in New York after he rejected a similar request on Friday with a scathing ruling that accused the administration of putting politics before science.

The administration is appealing Judge Korman’s April 5 order to make the so-called Plan B morning-after pill available without restrictions, citing procedural flaws in his ruling and a lack of scientific evidence on how the pill could affect girls younger than 15.

Its efforts to take control of the politically volatile issue follows a 2011 decision by Health and Human Services Secretary Kathleen Sebelius, with support from President Obama, to override the Food and Drug Administration’s advice to make the pill available without age restrictions.

The Center for Reproductive Rights, which filed the underlying lawsuit, said it would answer Monday’s legal filing within 10 days, clearing the way for a decision by the appeals court, according to The Associated Press.

Days before the Justice Department filed its appeal, the FDA lowered the age threshold, from 17 to 15, for unfettered access to the one-pill form of the drug by approving an application from the drug’s maker, Teva Women’s Health.

On Friday, Judge Korman rebuked the administration for “sugar-coating” its appeal with the move and accused Mrs. Sebelius of continuing an “administrative filibuster” of the scientific community’s attempt to make Plan B available to all girls of reproductive age.

He also said the administration was ignoring the difficulties that minorities and poor women face in obtaining ID cards to establish their age, a hurdle the Justice Department itself pointed to in a recent voting rights case before the Supreme Court.

But the Justice Department, in its new filing, said a failure to delay the lower court’s ruling before the appeal runs its course could result in widespread confusion.

“If the status of these drugs is changed and later reversed, some women may mistakenly believe that they can obtain the drug without a prescription after they are no longer able to do so,” government attorneys wrote.

They said Judge Korman exceeded his powers in ordering the FDA to make the pill widely available without allowing the government to conduct its own rule-making process.

“The court’s sweeping order,” they wrote, “fundamentally misapprehends the process by which FDA can change the status of a prescription drug to nonprescription. … Because the district court plainly overstepped its authority, there is a substantial likelihood that the government will prevail in this appeal.”

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

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