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Obama Administration's Plan B Appeal Denied By Federal Judge

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Health and Human Service Secretary Kathleen Sebelius testifies at a House Ways and Means committee hearing on President Obama's FY2014 Budget proposal. (Chris Maddaloni/CQ Roll Call)
Health and Human Service Secretary Kathleen Sebelius testifies at a House Ways and Means committee hearing on President Obama's FY2014 Budget proposal. (Chris Maddaloni/CQ Roll Call)

A federal judge on Friday denied the Obama administration's request to delay his order that the Plan B morning-after pill be made available over the counter without age limits. The judge sharply rebuked the administration for appealing his decision, calling the move politically motivated, “frivolous," and "something out of an alternate reality."

The court battle over the morning-after pill began in December 2011, when Secretary of Health and Human Services Kathleen Sebelius overruled the Food and Drug Administration's recommendation that the pill be made available over-the-counter to all ages. Sebelius said that girls under the age of 17 should continue to only have access to the pill with a doctor's prescription.

U.S. District Court Judge Edward Korman decided in April that Sebelius' decision was based on politics, rather than medical evidence. He ordered the Food and Drug Administration to lift all age limits on Plan B emergency contraception and sell it on pharmacy shelves next to the condoms.

Instead of complying with the judge's order, the FDA lowered the age limit to 15, and the Obama administration asked Judge Korman to delay the implementation of his decision while they appealed it. Korman denied that request on Tuesday.

The administration's attempt to maintain an age limit on Plan B, Korman wrote in his decision, "ignores the fact that the FDA found that the drug was safe and could be used properly without a doctor’s prescription, and was prepared to make it available over-the-counter for all ages." Thus, he added, "if a stay is denied, the public can have confidence that the FDA’s judgment is being vindicated, and if a stay is granted, it will allow the bad-faith, politically motivated decision of Secretary Sebelius, who lacks any medical or scientific expertise, to prevail—thus justifiably undermining the public’s confidence in the drug approval process."

Korman said that Sebelius had "flagrantly violated" the FDA's "salutary principle," which is that only the FDA has the scientific expertise to make a decision on how to administer a particular drug. "Yet, in something out of an alternate reality, the defendants seek a stay to pursue an appeal that would vindicate the Secretary’s disregard of the very principle they advocate," Korman wrote.

Following Friday's ruling, the government has until noon Monday, May 13, to file a stay motion with the 2nd Circuit to delay compliance pending its appeal, or it will be forced to lift the age limit on the pill.

The Center for Reproductive Rights, the legal advocacy organization that filed the lawsuit against the administration, applauded the judge's decision on Friday.

“In a country where nearly half of all pregnancies are unintended, there is a tremendous public interest in expanding access to safe and effective birth control methods, including emergency contraception, to as many women as possible," said Nancy Northup, president and CEO of the group. “Judge Korman’s sound ruling simply orders the government to do what the experts at FDA have been trying to do for years: to put politics aside and let science guide us to a policy that makes emergency contraception readily accessible to all women when they need it most urgently."

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