The Obama Administration announced late yesterday that it would be appealing a decision issued last month voiding an FDA rule that restricted non-prescription use of the morning after pill to women over 17:
The Obama administration moved Wednesday to keep girls under 15 from having over-the-counter access to morning-after pills, as the Justice Department filed a notice to appeal a judge’s order that would make the drug available without a prescription for girls and women of all ages.
The appeal reaffirms an election-year decision by Mr. Obama’s administration to block the drug’s maker from selling it without a prescription or consideration of age, and puts the White House back into the politically charged issue of access to emergency contraception.
The Justice Department’s decision to appeal is in line with the views of dozens of conservative, anti-abortion groups who do not want contraceptives made available to young girls. But the decision was criticized by advocates for women’s reproductive health and abortion rights who cite years of scientific research saying the drug is safe and effective for all ages.
“Age barriers to emergency contraception are not supported by science, and they should be eliminated,” Cecile Richards, the president of Planned Parenthood Federation of America, said in a statement on Wednesday.
In December 2011 the secretary of health and human services, Kathleen Sebelius, blocked the sale of the drug to young girls without a prescription, saying there was not enough data to prove it would be safe. In doing so, Ms. Sebelius took the unprecedented step of overruling the Food and Drug Administration, which had moved, based on scientific research, to lift all age restrictions.
Last month, Judge Edward R. Korman of United States District Court for the Eastern District of New York criticized that decision as overtly political and ordered the administration to make the contraceptive widely available. The Justice Department’s appeal will not say at what age girls should have access to over-the-counter morning-after pill.
Instead, it will contend that Judge Korman did not have the authority to order the F.D.A. to take a specific action and should have sent the issue back to the agency for further action. And it will say the judge did not have the right to extend his order to versions of the pill not included in the lawsuit.
The decision to appeal is striking in part because, before Ms. Sebelius overruled it in 2011, the F.D.A. — the Justice Department’s client in this case — had moved to do exactly what Judge Korman ordered last month.
“We aren’t focused in this appeal on the merits of the secretary’s decision,” said a Justice Department official, who spoke on condition of anonymity. “What we’re focused on is that the remedies that the judge ordered were beyond his authority.”
For Mr. Obama’s administration, the decision to appeal the judge’s ruling provides an opportunity to reaffirm a moderate position in the broader abortion debate that had drawn praise from conservative groups that are normally highly critical of the president.
The appeal also reinforces Ms. Sebelius’s original 2011 decision, which proved to be very good politics for Mr. Obama at the time. Facing a difficult re-election battle, the Democratic president enthusiastically supported Ms. Sebelius, saying that as a father of two young daughters, he thought it was the right call to have made.
This isn’t entirely surprising. It was unlikely that the Administration was going to let a District Court opinion be the final say on a rule with nationwide implications. Additionally, as I noted yesterday, the FDA has already announced that it was changing policy to making drugs like this more widely available.
