A Win For Emergency Contraception

Last Friday a judge ruled that the morning-after pill must be provided over the counter to women of all ages, a policy that the Obama administration’s FDA has fought. Scott Lemieux explains the case: 

The opinion by Reagan-appointed District Court judge Edward Korman … makes a compelling legal case that the override of the FDA was illegal. The crucial factor underlying Korman’s opinion is the question of whether the executive branch followed the appropriate procedures. Congress, for better or worse, has the broad authority to regulate the availability of drugs. If it chose to ignore the scienitific evidence and perversely choose policy goals that would make unwanted teen pregancies more common, it is probably free to do so. The executive branch, however, does not have the same discretion to make policy choices in this case. As Korman notes, under longstanding precedent “an irrational departure” from established agency procedures may be subject to overturning as being “arbitrary and capricious.” The power to make the relevant policies were delegated by Congress to the FDA, and the scienitific judgments of the professionals at the FDA can be overriden by the political appointees of the executive branch only on scienitific grounds.

Amanda Hess adds her two cents:

Reproductive health has always been a point of political posturing. But one of the more interesting lessons of the 14-year fight over Plan B is how seamlessly political obstruction translated from a conservative administration to an ostensibly progressive one—President Bush’s move appealed to his base, and President Obama’s move appealed to Bush’s base, too. By the time [National Women’s Liberation] filed this latest suit—and won—Obama was already cleared for another four years. Within a month, the United States will finally offer medicine to women and girls because it makes medical sense.