In the ongoing saga over access to emergency contraception, U.S. District Court Judge Edward R. Korman today delivered a scorching critique of the Obama administration’s policies, likening them to voter suppression, and saying that the U.S. Food and Drug Administration’s (FDA) decision-making on emergency contraception has been corrupted by political influence.
“You have absolutely no credibility,” he told F. Franklin Amanat, senior counsel for the U.S. Department of Justice. “This is a charade.”
The hearing centered on an April decision in which Judge Korman ordered the U.S. Food and Drug Administration to make emergency contraception—known colloquially as the “morning-after pill”—available over the counter to people of any age. The Obama administration intends to appeal that decision, and has sought an extension of the 30-day time limit that Judge Korman imposed for the FDA to comply with his order.
Judge Korman today said he would grant a temporary extension if he decided not to grant a more permanent stay. But he took issue with the administration’s conduct in relation to emergency contraception.
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Citing the “corruption of the administrative process by political influence,” Korman pointed to last week’s announcement that the federal government will now allow access to emergency contraception for people over 15 years old who can provide photographic identification. That announcement—which was much narrower in scope than Korman’s April decision—came the evening before the Justice Department filed an appeal.
“You made that announcement to sugar-coat this appeal,” Judge Korman said. “We have this little choreography between the FDA, the Justice Department, and the president.” Judge Korman referred to President Obama’s visit to Planned Parenthood last week as “giving them a kiss.”
Central to his earlier decision was the evidence of political considerations trumping the medical and scientific evidence within the FDA.
Judge Korman also voiced concerns that the new policy would have a discriminatory effect on certain groups that are known to be less likely to possess photographic identification. Citing research from the Brennan Center for Justice at New York University School of Law, Judge Korman said the requirement for photographic identification was akin to voter suppression efforts, which often use barriers such as identification requirements to inhibit certain groups from voting.
“If this were a voting rights case, you’d be here telling me this was voter suppression,” he said. “You’re disadvantaging poor people, young people, and African Americans. That’s the policy of the Obama administration?”
Judge Korman also criticized the continued focus on preventing access to the morning-after pill by girls under the age of 15, who represent a tiny fraction of those who use the medication. Throughout the debate over emergency contraception, government officials have insisted that age restrictions were appropriate because of the unknown effects of the medication on girls as young as 11 or 12. Korman noted, however, that the reason there is little evidence on how the medication—which has otherwise been shown to be safe and effective—affects 11-year-olds, is because so few of them use emergency contraception that it is impossible to conduct a reliable study.
“The bottom line is that it’s not possible to provide the data on 11- and 12-year-olds,” Judge Korman said. “You’re using these 11- and 12-year-olds to place an undue burden on the ability of older women to get this contraceptive.”
Senior counsel for the U.S. Department of Justice, F. Franklin Amanat, denied that last week’s announcements—or President Obama’s address to a Planned Parenthood event—were coordinated to provide political cover for the legal appeal. Instead, he maintained that the FDA was competent to revisit the question of whether it should again broaden the rules on who can access emergency contraception.
However, a lawyer for the Center for Reproductive Rights, which opposes the extension, argued that the FDA has already been given a chance to reconsider this case. In fact, it was that very reconsideration that was the subject of Judge Korman’s April orders, in which he found that the government had acted in an “arbitrary and capricious” fashion, and was deliberately wasting time and taxpayer money.
Judge Korman indicated that he agreed, saying he could see little point in allowing the FDA to re-reconsider this case, as it has already been considered twice by the FDA—once under the Bush administration, and once by the Obama administration.
“The same policies followed by the Bush administration, have been followed by the Obama administration,” he said. “We are going around in circles.”
Judge Korman said he plans to issue an opinion by the end of the week, in which he will decide whether to grant a more permanent extension for the FDA to comply with his April orders. However, even if he decides not to grant that extension, the government will go to the court of appeals to ask for an extension. It is unlikely, therefore, that free access to emergency contraception will come into effect in the immediate future.
Correction, May 9, 1:35 pm Eastern: A version of this article incorrectly noted that Judge Korman granted a temporary extension on Tuesday. Instead, Korman said he would grant a temporary extension if he decided not to grant a more permanent stay.