Good News: NY Judge Won't Delay Making Plan B Available for All

BROOKLYN—As AVN noted yesterday, one of the reasons why putrid "abortion mills" like the one run by Dr. Kermit Gosnell in Philadelphia are able to survive is in part based on the fact that religious conservatives spend so much time and energy trying to keep women from accessing abortions at legitimate clinics and hospitals, and also by denying them free access to contraceptive devices. In fact, there are several lawsuits currently ongoing in the federal courts to attempt to exempt certain companies and sole proprietorships from being forced to offer free birth control coverage along with their employee healthcare programs.

In that light, more people should be giving kudos to U.S. District Judge Edward R. Korman, who today declared that despite the fact that the Food and Drug Administration took his ruling in Tummino v. Hamburg, which eliminated any age barriers to women and girls obtaining access to the "morning after pill" Plan B, and decided nonetheless to limit access to the drug to girls over 15 years of age, and despite the fact that the U.S. Department of Justice has decided to appeal his ruling to the Second Circuit Court of Appeals, that Judge Korman is going to let his decision take effect anyway—absent a stay issued by the Court of Appeals, which has to take place by this coming Monday or the current law would be struck down.

Noting that the effort to convert Plan B-type drugs (known generically as levonorgestrel-based emergency contraceptives) from prescription to over-the-counter "has gone on for over twelve years, even though they would be among the safest drugs available to cildren and adults on any drugstore shelf," Korman described the response to his ruling as "unjustified political interference." He further noted that even though the Food and Drug Administration concluded in late 2011 that Plan B One-Step, manufactured by Teva Women's Health, "could be sold over-the-counter and without a prescription or age restriction," that that finding was reversed by Health and Human Services Secretary Kathleen Sibelius—a move Korman described as "politically motivated and ... so unpersuasive as to call into question her good faith."

Understanding that it is common for federal judges, when issuing rulings that substantially affect existing law, to stay those opinions until they are affirmed by the federal appeals courts, Judge Korman nevertheless argued that his decision not to stay his ruling was proper and based on four separate factors: "(1) whether a party will suffer irreparable injury if a stay is issued, (2) whether the movant will suffer irreparable injury absent a stay, (3) whether the movant has demonstrated a substantial possibility, although less than a likelihood, of success on appeal, and (4) the public interests that may be affected."

Judge Korman discussed each of those points, finding that since the FDA had already approved the drug for women of all ages and there was no scientific reason not to allow them to have it, neither the movant (Justice Department) would be harmed by such a stay, and by contrast, a stay might easily harm a large number of females who need the drug but would be unable to purchase it absent the judge's ruling. He also took issue with the FDA's recent decision to allow 15-year-olds to get the drug by showing identification documents proving their age, noting that many (perhaps most) 15-year-olds don't have driver's licenses, passports, military IDs, voting IDs with photo or any of the other common age-proof docs to which adults have easy access.

He also noted that the Justice Department really has no issues to raise on appeal, since the plaintiff in the original case, Teva, had already made a deal with the FDA only to offer their Plan B One-Step to women over 15, and therefore there was nothing to appeal in that case; it was over. He further argued that since Sibelius was apparently not about to change her mind on the issue, further litigation of the matter would be fruitless, and that by the defendants' own admission, "they could not continue to reach the same decision on remand after remand and claim that the only remedy was yet another remand," which Judge Korman felt was pointless and futile.

"On remand, defendants engaged in the same bad faith that resulted in my initial remand," the judge declared. "They delayed the decision for three years and, ultimately, improper political influence prevented the FDA from granting the petition. Nor do they claim a reasonable probability of success on appeal in challenging my analysis of their flagrant misconduct."

"The motion for a stay pending the appeal is denied," Judge Korman concluded. "Indeed, in my view, the defendants’ appeal is frivolous and is taken for the purpose of delay. Nevertheless, as a courtesy to the Court of Appeals, and to enable it to schedule the motion in the ordinary course, I grant a stay pending the hearing or submission of the defendants’ motion for a stay in the Court of Appeals on the condition that the motion for a stay be filed by noon on May 13, 2013."

And considering that the Second Circuit Court of Appeals is considered fairly liberal—for example, they overturned the FCC's attempt to fine Fox Broadcasting for allowing "dirty words" to be telecast during the Billboard Music Awards—it seems likely that women and girls across the country will soon have access to much-needed contraceptive care.

Judge Korman's Memorandum & Order can be found here.