Friends, Romans, countrypeople, lend me your ears (…er, eyes?)—we’ve got a third week of Plan B coverage on our hands! Last Friday, May 10th, Judge Edward R. Korman “refused to lift his order that the Plan B emergency contraceptive be made available over the counter to women of all ages” (from SCOTUSblog), and gave the federal government until noon on Monday, May 13 to “start pursuing an appeal to the Second Circuit Court.”
This refusal follows the Department of Justice’s May 1 announcement that it planned to appeal Tummino v. Hamburg, the case for which Judge Korman penned his controversial opinion. There has been no progress in terms of the federal governement’s appeal but, as I explained last week, it seems that both the Justice Deparment’s decision to appeal and the FDA’s announcement that Plan B would be made available sans-prescription for all women fifteen years or older are somewhat politically motivated. Perhaps the Department of Justice is now stalling to try and figure out exactly why Judge Korman’s decision is in such desperate need of appeal?
As I explained last week, and as SCOTUSblog reported, the Justice Department takes umbrage with two aspects of the case—first, that Korman overstepped his authority and could not actually order universal Plan B access, and second, that he should have remanded the case to the FDA for further review before penning an opinion that broad. These arguments raise the valid question of just how far a federal judge’s jurisdiction actually goes—can Korman actually order the government to do anything?—but, on the other hand, Korman’s points are pretty salient, too.
In his May 10 refusal, Judge Korman starts with a bang, saying,
“This case involved Plan B and Plan B One-Step, emergency contraceptives that can be taken to reduce the risk of pregnancy after unprotected intercourse. They must, however, be taken as soon as possible after unprotected intercourse. The longer the delay, the less effective they become… The FDA, responding to unjustified political interference, delayed as long as it possibly oculd before it took even one incremental step in the process [of making Plan B over-the-counter].”
It gets better from there—Korman accuses the federal government of making a deal with Plan B’s manufacturer; explains that, when research was conducted on Plan B several years earlier, the FDA wanted universal over-the-counter access because the drug has fewer negative effects for its youngest users than other over-the-counter drugs frequently used by young people; and then proceeds to rip apart the new rules that apply to Plan B as of April 30. These rules are, for clarification purposes,
“1. women fifteen years of age or older will be allowed to buy the one-pill version, but only from a store with an on-site pharmacy and only if they can prove their age; 2. other versions of the contraceptive with the same basic ingredient as Teva’s Plan B will only be available from behind the counter and only for women over the age of seventeen who can prove their age with a government-issued ID; and, 3. women who do not have a government ID or who are under the age of fifteen will not have any access to Teva’s one-pill version and must get a prescription for a competing product, such as a generic version.” (from SCOTUSblog)
To use a phrase that has recently become popular within my circle of friends, Judge Korman “dropped some serious truth bombs” on Friday and hasn’t looked back. And these truth bombs aren’t unreasonable, either. A few years ago, FDA tests found that there was no medical reason why Plan B shouldn’t be made available without a prescription to women of all ages, but recently Kathleen Sebelius and President Obama choose to ignore that advice and set an arbitrary age limit. Why?
Regardless of the government’s reasons for its strange new Plan B policies and its decision to appeal Tummion, Monday, May 13 has come and gone. And what does this brave new world look like? Has the Justice Department started pursuing its appeal with the Second Circuit? Has Korman released more fiery statements? Yes and no. On Monday, the Justice Department did in fact ask the Second Circuit to block Judge Korman’s order, and as of 6:05 pm (according to SCOTUSblog), the Second Circuit Court said that “it will submit the government’s request to a motions panel on May 28. In the meantime, the judge’s order on unlimited access for all ages will remain on hold. There is no timetable for the Circuit Court to act.”
And what does that mean? Well, on May 28, we’ll know whether or not Tummino will be heard by the Second Circuit and appealed, either in favor of Korman’s opinion or against it. Therefore, you know what to do—keep your eyes out for any more news relating to this case, and look forward to the fallout.