Despite all of the important, progressive strides the Obama administration has taken on contraception access, it’s still making one disappointing mistake.
U.S. Department of Justice officials have filed notice that they will appeal a federal judge’s order requiring the Food and Drug Administration to make the so-called “morning after” pill available without a prescription to all women without age or certain sales restrictions.
The department also has asked the federal district court to stay its order, which was set to take effect on May 6, according to Allison Price, a spokeswoman.
Let’s back up to consider the larger series of events. In December 2011, the administration overruled the FDA’s Center for Drug Evaluation and Research and said morning-after pill would not be available over the counter to anyone under the age of 17. The motivations behind the move appeared entirely political – the administration clearly hoped to avoid a culture-war fight on minors and contraception less than a year before the presidential election.
A month ago, a federal court forcefully rejected the administration’s position, calling it “arbitrary, capricious and unreasonable.” The court ruling added that the 2011 policy was “politically motivated, scientifically unjustified, and contrary to agency precedent.”
For progressives, who endorse the Obama administration’s line on reproductive rights and contraception access 9 times out of 10, the hope was that officials would simply accept the ruling, announce that there would be no appeal, and undo what was done a year and a half ago.
Late yesterday, the administration did the opposite, disappointing its allies and appealing last month’s ruling. There is, however, a catch.
Actually, there’s two. The first is, officials aren’t making much of an effort to publicly dispute the merits of the district court’s ruling. Then why appeal it? Because they’re worried about the larger precedent – as the NBC News report noted, “Justice officials appeared to be concerned by the precedent the order would send in overturning a top administrative decision.”
In other words, putting aside the specific issue at hand, the administration believes it has a responsibility to follow through with legal defenses of its policy decisions, even if they were political decisions they no longer fully endorse. It’s a we-have-to-go-through-the-motions defense.
The second, and more important, angle is that the administration believes it has an alternative solution to the underlying problem. Just 24 hours before the disappointing appeal, officials also made a related announcement that may have crossed your radar screen.
U.S. regulators on Tuesday lowered the age limit for Plan B One-Step emergency contraception, approving it for sale to girls as young as 15 and agreeing it will be available without a prescription and on store shelves instead of behind pharmacy counters, Food and Drug Administration officials announced.
This appears to be part of an attempted compromise. The administration is effectively saying to the reproductive rights community, “Don’t worry about the appeal; we just cleared Plan B for everyone 15 and up anyway, and that policy will go into effect immediately while the lawyers go through the motions at the 2nd Circuit.”
It’s not a bad pitch, I suppose, but as Irin Carmon explained yesterday, the far better option would have been for the administration to simply follow last month’s ruling.