The Federal Appeals Courts, Like Harvard Law School Grads Who Become Radical Conservatives, Moves in Mysterious Ways on the Plan B Lawsuit

Sometimes There is Just No Logic There

One of the issues in the contraception wars is whether or not the over the counter morning after pills known as Plan B can be age restricted.  The FDA said there was no reason to.  The FDA was over-ruled by the Secretary of Health and Human Services.  A Federal judge said this was ridiculous, that there was no basis in law for the Secretary to do such a thing and ordered the pill to be made available without age restriction to all women.  And he was rather adamant about the government having no case.

Federal judge Edward Korman has ordered FDA to make both types of birth control freely available. While the fight was going on, FDA gave an amended approval to one brand, Teva’s Plan B One-Step, saying it could be sold to any girl or woman 15 or older with ID and in stores with on-site pharmacies. 

Korman, clearly furious, accused the FDA of being politically motivated and said it made a “sweetheart deal” with Teva. 

The issue of whether or not to grant a stay of Judge Korman’s decision went to a three judge panel of the 2^nd Circuit Court of Appeals.  They have ruled that Judge Korman’s decision can be stayed and they have ruled that it cannot.  Huh?

The FDA has appealed the ruling and the three appeals court judges -- Ralph Winter, Peter Hall, and Gerard Lynch -- have now given the FDA a little bit more time to appeal the decision on Plan B One-Step. But the court says FDA has to comply with Korman’s order to make the older, two-step formulations available to all comers right away.

“Insofar as the order mandates immediate over-the-counter access to the two-pill variants of emergency contraceptives, a stay is denied because the Appellants have failed to meet the requisite standard,” they wrote.

So the Appeals Court has said any woman can buy the two pill version, but not all women can buy the one pill version because denying the two pill version did meet the ‘requisite standard’.  Really, just what standard is that?   Oh, the 2^nd Circuit order didn’t say. 

The entire process here with the government was largely political.  The Secretary over-ruled the FDA because she didn’t want young girls to be able to buy the pills without parental involvement.  But everyone should put on their Libertarian hat here.  Exactly why the Secretary should be in a position of making that judgment is not clear, is not evident and has no basis in law.  And parents who want the government to take over their responsibility, and some of these are probably rock bound conservatives, ought to think about just why they cannot work with their kids, and why they need the government to do their parenting for them.