Judge Calls Bullsh*t on Obama’s Plan B Punt

This undated handout photo provided by Judge Edward Korman shows U.S. District Judge Korman of New York. In a scathing rebuke of the Obama administration, a federal judge ruled Friday that age restrictions on over-the-counter sales of the morning-after pill are "arbitrary, capricious and unreasonable" and must end within 30 days. The ruling by Korman means consumers of any age could buy emergency contraception without a prescription _ instead of women first having to prove they're 17 or older, as they do today. And it could allow Plan B One-Step to move out from behind pharmacy counters to the store counters. (AP Photo/Judge Korman's Office)

Though it looks like an improvement, there are lots of reasons to resent the Obama administration’s decision to make Plan B available over the counter only to those 15 and up. For one, it's rooted in political squeamishness, not scientific evidence. The FDA approved the emergency hormonal contraceptive— which is safer than over-the-counter drugs without age restrictions, such as Motrin and Sudafed and must be obtained quickly after unprotected sex in order to work— for all ages. Plus, the age restriction requires buyers carry photo ID, which (as the Obama administration itself has argued with regard to voter suppression laws) would disadvantage African Americans, the poor, and young people. District Court Judge Edward Korman touched on all of these in what Salon’s Irin Carmon described as a “charged and dramatic” two-hour hearing with Obama administration lawyers yesterday.

In March, Korman ordered the Obama administration to lift all restrictions on the over-the-counter sale of emergency contraception. The FDA had previously recommended as much, but Secretary of Health and Human Services overruled it, in what Korman says was “bad faith.” The Department of Justice is appealing Korman’s decision, but accepted agreed to lower the age restriction from 17 to 15.

Carmon reports:

“This morning, Korman repeatedly slammed his hand down on the table for emphasis, interrupting the government counsel’s every other sentence with assertions like, “You’re just playing games here,” “You’re making an intellectually dishonest argument,” “You’re basically lying,” “This whole thing is a charade,” “I’m entitled to say this is a lot of nonsense, am I not?” and “Contrary to the baloney you were giving me …” He also accused the administration of hypocrisy for opposing voter ID laws but being engaged in the “suppression of the rights of women” with the ID requirement for the drug.”

The most shocking revelation is how the Obama administration appears to have choreographed the 15-and-up age restriction to “sugarcoat” its appeal of Korman’s ruling. The new age limit came in the form of a 2012 petition from Plan B manufacturer Teva, asking to lower the age restriction from 17. In what Korman called “one of the most unusual administrative law cases” he’d ever seen, the Obama administration accepted the application days before it announced it would appeal Korman’s March ruling to lift age restrictions on the drug. Reading previously unreleased, confidential correspondence between the FDA and Teva, Korman revealed that the Obama administration originally rejected Teva’s attempt to lift all age restrictions, instructing them to reapply with a lower age compromise.

“It turns out that the same policies that President Bush followed were followed by President Obama,” Korman said. Burn.