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Judge won't delay his order for easy access to 'morning after' pill

A federal judge, in a slap to the Obama administration, refused Friday to postpone his order to make the 'morning after' pill widely available to women and girls. The government had sought a stay pending appeal.

By Staff writer / May 10, 2013

A pharmacist holds a generic emergency contraceptive at the Health First Pharmacy in Boston.

Elise Amendola/AP

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A federal judge on Friday refused to significantly delay his order that the morning-after emergency contraception pill be made widely available to women and girls regardless of their age.

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US District Judge Edward Korman rejected an Obama administration request that the decision be put on hold while government lawyers present the issue to a federal appeals court panel.

“The motion for a stay pending appeal is denied,” Judge Korman said in a 17-page order. “Indeed, in my view, the [government’s] appeal is frivolous and is taken for the purpose of delay.”

He called the government’s action in the case an “administrative agency filibuster” designed to indefinitely sidetrack his earlier order.

The Brooklyn-based judge granted a short postponement of the order, giving government lawyers until noon Monday to file their appeal. The lawyers are expected to ask the Second US Circuit Court of Appeals to stay Korman’s order.

At issue is a long-running dispute over the availability of the morning-after pill. The Food and Drug Administration (FDA) decided years ago that the emergency contraceptive should be made widely available. That decision was overruled by Health and Human Services Secretary Kathleen Sebelius.

The judge has criticized the Sebelius reversal as politically motivated to avoid public criticism and political fallout.

In his ruling Korman cited the FDA’s own conclusion that the emergency contraceptive is safe and effective and that it “should be approved for nonprescription use for all females of child-bearing potential.”

Acting on that scientifically-based conclusion, the judge ruled in early April that women and girls who needed the emergency morning-after pill should be able to enter a drugstore and purchase it – without a prescription or an ID requirement – at the moment they most need it.

Last week, in response to his ruling, the FDA announced that the morning-after pill would be available on store shelves to those 15 and older. The prior cutoff had been 17.

The judge criticized the 11th-hour action as an attempt to “provide a sugarcoating for the FDA’s appeal.”

He noted that the new rule requires customers to prove their age by showing government-issued photo ID.

Lawyers at the Justice Department argued during the recent presidential election that the requirement to show government-issued ID at the polls erected a significant burden on the right to vote. One study said that 25 percent of African-American citizens of voting age lack government-issued photo ID. The numbers are likely higher for those younger than voting age.

The judge rejected the government’s argument that a stay of his order was necessary because women might become confused about what products were available or not. He said the suggestion was “an insult to the intelligence of women.”

If women can no longer obtain the emergency contraceptive without a prescription at certain locations, he said, they will go to locations where it is available.

“On the other hand, if a stay is granted, the prejudice to those who need ready access to emergency contraception is a certainty, and is likely to continue until the resolution of the appeal – a period of time which is difficult to predict,” Korman said.

Groups supporting wider availability of the morning-after pill praised the judge’s decision and criticized the Obama administration’s stance on the issue.

“This is politics at its worst and the administration should be ashamed of its duplicitous conduct,” said Andrea Costello, counsel for the plaintiffs in the suit against the FDA.

“President Obama is seeking to sacrifice the reproductive rights of women of all ages at the altar of his political strategy,” added Mara Verheyden-Hilliard, executive director of the Partnership for Civil Justice Fund, which is supporting the lawsuit.

“He wants to placate the political right wing at the expense of the health needs and reproductive rights of women,” she said in a statement.

The administration was using “deception and distraction as a tactic to avoid complying with [Judge Korman’s order] to make the morning-after pill available without age restriction or identification barriers,” Ms. Verheyden-Hilliard said.

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