THE BLOG
05/01/2013 07:57 pm ET | Updated Jul 01, 2013

Plan B's Plan B

The news that "Plan B" -- a pill to be taken as soon as possible after unprotected sex to prevent pregnancy -- will now be sold to all young women age 15 and older (instead of 17 and older, as it was previously) is nothing short of laughable, in multiple ways. The Obama administration is trying to have it both ways on the "morning after" pill, and by doing so is taking a firm anti-scientific stand for irrationality. The only real question now is whether they will be found in contempt of court for disobeying a federal judge's ruling to let science triumph over politics, or whether they will appeal the ruling, firmly standing up for politics over science.

The first way this recently-announced decision is laughable is that the Obama administration insists that it has nothing to do with the court case or the judge's ruling. They're just (they say) approving an earlier application to sell the drug to women age 15 and 16 without a prescription. A little review of the court case is necessary to see how laughable this position truly is. Health and Human Services Secretary Kathleen Sebelius was presented with a recommendation from the Food and Drug Administration which urged that Plan B be sold over-the-counter (without a prescription, in other words), with no age restrictions. Sebelius overruled the scientific evidence, and dictated that all women 16 and under had to get a prescription -- for no medical reason, merely for political reasons. This policy just lost, in federal court. The judge ruled that politics had trumped science, and that there was no reason not to sell the drug without restrictions.

In fact, the judge didn't just rule against the Obama administration, he absolutely eviscerated their legal position. He singled out Secretary Sebelius' decision, calling it "politically motivated, scientifically unjustified, and contrary to agency precedent." He goes on (at great length) to detail how Sebelius' position was "a strong showing of bad faith and improper political influence." In his conclusion, he calls Sebelius' decisions "arbitrary, capricious, and unreasonable." The ruling ends with (see the full text of this scathing ruling, in PDF format):

Finally, even if the defendants' arguments would be sufficient to carry the day in the run-of- the-mill case, the bad faith that has permeated consideration of the Citizen Petition, not to speak of the Plan B sponsor's applications, should rule out such relief here. More than twelve years have passed since the Citizen Petition was filed and eight years since this lawsuit commenced. The FDA has engaged in intolerable delays in processing the petition. Indeed, it could accurately be described as an administrative agency filibuster. Moreover, one of the devices the FDA has employed to stall proceedings was to seek public comment on whether or not it needed to engage in rulemaking in order to adopt an age-restricted marketing regime. After eating up eleven months, 47,000 public comments, and hundreds of thousands, if not millions, of dollars, it decided that it did not need rulemaking after all. The plaintiffs should not be forced to endure, nor should the agency's misconduct be rewarded by, an exercise that permits the FDA to engage in further delay and obstruction.

The judge gave the Obama administration 30 days to act. He ruled that Plan B should be made available "without a prescription and without point-of-sale or age restrictions" in that time period. The deadline is this Sunday.

And yet, the Obama administration has just announced that it will be changing the rules by only slightly relaxing the age restrictions, the prescription restrictions, and the point-of-sale restrictions -- but we're supposed to believe that this has nothing to do with the judge's order. I'm sorry, but this smells like "further delay and obstruction" to me. And it seems to indicate that the Obama administration is going to ignore the deadline and appeal the ruling.

The really laughable thing about this announcement was how Senator Patty Murray attempted to put a positive spin on the indefensible. "This decision is a step in the right direction for increased access to a product that is a safe and effective method of preventing unintended pregnancies. It's also a decision that moves us closer to these critical availability decisions being based on science, not politics." Seriously? This "moves us closer" to these decisions "being based on science, not politics" -- when the entire exercise is political? Insert your own "a little bit pregnant" joke here, I suppose.

Here is a quick recap of where we find ourselves:

  • Scientists say "sell it over-the-counter to all, no restrictions"
  • Kathleen Sebelius decides to overrule scientists in an unprecedented way, purely for political reasons.
  • Sebelius loses a lawsuit in which this nakedly political and completely anti-science decision is exposed by a federal judge.
  • Sebelius ordered to follow original scientific rules, within 30 days.
  • On the 25th day, Sebelius says we're going to relax the restrictions a wee bit, but keep them in place, for no scientific reason whatsoever. Oh, and insists that the judge's ruling had nothing to do with it.

Next up on this list: "Deadline is reached." Which will be followed by either: "Obama administration appeals ruling so that it can continue to trump science with politics" or "Obama administration found in contempt of court."

The truly laughable aspect of this sad situation is that Barack Obama promised us all, in his first campaign, to do away with exactly what he's trying to defend now -- having politics dictate federal scientific policy. He promised he wasn't going to do that sort of thing anymore. Obama seems to be blowing an opportunity to live up to this pledge, and one that comes with political cover actually built in. You could have even ironically called it "Obama's Plan B" (or maybe even his "Plan B Plan B"). Obama could have directed Sebelius to throw in the towel and essentially blame the whole thing on the judge, by stating "our hands were tied, so we had to let the scientists decide without politics interfering." But, unless there's another announcement in the next few days, it looks like Obama won't be taking this route.

The really ironic thing, however, comes from Sebelius herself, less than a year ago, when she wrote an article touting the positive things Obamacare contained for women. She ended her piece up with the following -- an ideal she might consider actually trying to live up to, right now:

"Women's health decisions shouldn't be made by politicians or insurance companies. Rather than wasting time refighting old political battles, this Administration is moving forward and putting women in control of their own health care. If women are going to take care of their families and friends, they have to take care of themselves."

 

Chris Weigant blogs at:

ChrisWeigant.com

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