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Not Just Stupid, Illegal


A federal judge has persuasively ruled that the Obama administration’s disgraceful decision to refuse over-the-counter access to emergency contraception for young women under 18 was illegal. The decimation of the administration’s farcical invocation of 11-year-olds is particularly strong, but the entire opinion is well-constructed and devastating.

As I said at the time, not only was this decision procedurally arbitrary and indefensible on policy grounds, as a first approximation the votes gained by an irrational pro-unwanted-teen-pregnancy position was “none.” I hope the Obama administration will use this as a signal to just let this foolish mistake die a deserved death.

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  • sharculese

    Excellent decision that does a fantastic job of outlining the many, many ways in which what HHS did was stupid.

    And the degree of contempt on display, not just in the opinion but in the reports he cites, is incredible.

  • Shakezula

    It is a delicious opinion in which Korman outlines the history of the B.S. around this issue (which began, not surprisingly under you-know-who) spanks appropriate parties, including TalEvangical and Raped Children Corporation goons who have been fighting Plan B tooth and nail for decades. And, as a process dork, I appreciate how it gives needed insight into the rule making process.

    OK, not that I really think many people will read even part of the opinion, but at least it is there.

    At any rate, history happened last week.

    What isn’t clear from his decision (or wasn’t to me) is how Plan B will ultimately be distributed. It is currently kept in the pharmacy but you don’t need a script. Will it be OTC from the shelf or kept behind the front counter? I think that is still up to the FDA.

    P.S. Any chance we’ll see a History of Plan B in America on these e-pages? It wasn’t terribly long ago that we thought it would never be approved in the U.S.

    • ema

      OTC from the shelf. That was the original FDA decision, the one overruled by the administration. Politics demanded Rx for younger than 17 yo so it had to be sold behind-the-counter.

      • Shakezula

        Thanks. That’s what I thought but … brain fart?

        I will be interested to see when it comes out of the pharmacy and where stores will keep it. I think it should be with the condoms, but I can see a store keeping it behind the front counter or in another locked case ostensibly because it has a high likelihood of being stolen (a la baby formula).

      • But in reality, in a lot of places it will be just like condoms, lube, razor blades, electronic toothbrushes and a bunch of other things they sell in pharmacies: either behind the counter, or in a locked class cabinet.

        There are plenty of legitimate issues to debate regarding the Plan B rules. But the real-world impact on how (adult) women will purchase Plan B won’t, in a lot of places (especially anywhere with a concern about shoplifting or where the retailer may have an overblown concern about offending local sensibilities by having such things visible and within reach of everyone), be much different because of this decision.

        One other thing worth noting: there are several places in Western Europe where it’s harder to get Plan B than under even the rules this decision overturned. Maybe things have recently changed, but I’m pretty sure in France you can’t even purchase condoms off a shelf; along with plenty of things easily purchases here, like aspirin, they’re behind the pharmacy counter and you have to ask for them. And in Germany and the UK access to Plan B, iirc, is fairly similar to the Obama administration rules. [Interestingly, the rules, when i looked a year or so ago, were looser in some of the more heavily Catholic countries like Spain and Italy.]

        • Anonymous

          It may have been a joke that was lost in translation, but a few years back when I was in France and asked about it, I was told this had as much to do with “full employment” as morality.

  • somethingblue

    Pshaw. Since there was never any chance that the decision would be upheld by the courts, the administration masterfully seized an opportunity to win valuable support from centrist pundits, thus changing the conversation and advancing progressive goals. Sure, you can whine about the supposed impact on supposed seventeen-year-olds. I suppose you’d rather Mitt Romney were setting family planning policy?

    • Scott Lemieux

      Remember: always invest in straw futures.

      • Steve LaBonne

        Sorry, but this is actually a pretty decent parody of what one really hears all the time, not from any of the proprietors here of course, but from the considerable number of people who actually do reflexively and often comically defend everything Obama does. You see a lot of those types commenting on TPM and Balloon Juice.

        • DocAmazing

          Oh yeah. None here.

          • jb

            I think joefromlowell is a good example of a reflexive defender of Obama.

        • Scott Lemieux

          Can you cite me anyone of any influence defending the Plan B decision?

          • Steve LaBonne

            You might want to look up the definition of “parody”.

            • Scott Lemieux

              But it’s a parody that’s both tiresome and inaccurate.

              • DocAmazing

                It’s chained parody.

                • cpinva


          • Steve LaBonne

            Oh, and did my comment make reference to anyone influential? Are random commenters on the sites I mentioned “influential”?

            One wonders at the hypersensitivity on display here.

    • Incontinentia Buttocks

      The first rule of 11th dimensional chess is apparently: if a policy that the President supported does not become law or gets overturned by the courts, the President never really supported it.*

      * This rule does not apply to closing Gitmo or supporting the public option.

      • Or…the emergency contraception rule. Or any of a number of things.

        I’m not sure why you think a crude rule is necessary here, but it’s just wrong. Sometimes, failing to get something passed, because, say, you sabotaged it is evidence that you didn’t really want it. Sometimes, it’s evidence that you did really want it passed (because you took the ridiculous long shot). Sometimes, it’s not much evidence at all.

        • DocAmazing

          And sometimes, the simplest explanation–that either you wanted it, but didn’t get it, or you merely fucked up–is correct.

        • C’mon, get with the program: Obama and his team–pretty much all Democrats, in fact–are incompetent, which is why they consistently succeed in their elaborate attempts to sabotage things they said they wanted but were then denied.

          • Except for the Health Insurance Industry Bailout. They were super shrewd in forcing Our Progressive Heroes to vote for that, yet they can’t get these fussy Social Security cuts that are obviously their top priority now done.

  • Jo

    It’s worth reading the opinion, e.g.:

    Nevertheless, even with eyes shut to the motivation for the Secretary’s decision, the reasons she provided are so unpersuasive as to call into question her good faith. While the Secretary has strung together three factual statements in her memorandum to Commissioner Hamburg, she has failed to offer a coherent justification for denying the over-the-counter sale of levonorgestrel-based emergency contraceptives to the overwhelming majority of women of all ages who may have need for those drugs and who are capable of understanding their correct use. I proceed to deconstruct her explanation sentence by sentence.

    There are over five pages on those three sentences alone. It’s superb to see BS called on Sebelius in such devastating detail. It’s a nuclear bomb of an opinion.

    • Shakezula

      It sets an excellent precedent for the rule making process in general and reasons Thou Shalt Not Stall.

      • Scott Lemieux

        Yeah, good point — the stuff in the opinion about the deliberate foot-dragging is also brilliant.

        • cpinva

          “It sets an excellent precedent for the rule making process in general and reasons Thou Shalt Not Stall.”

          yes it does, and i can 100% guarantee you the next administration that wants to stall something will completely ignore it. pols are pols, and they do what they do.

          “Yeah, good point — the stuff in the opinion about the deliberate foot-dragging is also brilliant.”

          indeed it is. you could almost feel his palpable irritation with sect’y sebelius’ decision to defend the inherently indefensible rule, and the overtly political nature of her defense. again, that won’t stop this, or any other administration from doing the exact same thing, should they see it as politically expedient to do so. heck, it doesn’t cost them anything personally, so why should they care?

          • Shakezula

            Anyone who thinks a ruling that sets precedent means people will always follow said precedent should see me after class.

            • firefall

              Can I bring an apple?

  • cpinva

    i now await the first case involving a pharmacist who refuses to allow anyone under the age of 17 to purchase it, at all, due to their “deeply held religious beliefs”. anyone taking bets?

    • Shakezula

      I bet the house on your scenario not happening after the FDA complies with this ruling.

      • Stag Party Palin

        I’ll take that bet and raise you a Cheeto-stained basement apartment.

  • Law Spider

    “I hope the Obama administration will use this as a signal to…” get some lower court judges through the nomination process. District Court fact-finding matters. (See also: Judge Walker, Perry v. Hollingsworth)

    The only rational hope that I have is that President Clinton will make it a priority of hers to fill the open judicial positions. Otherwise, come the next Republican President, we are screwed.

    • Shakezula

      Korman was appointed by Reagan, Walker was also originally appointed by Reagan but didn’t get in until GHW Bush came along.

      Hence the shrill cries of Traitor! Admixed with the usual shrieks about Activist Judges.

      • Law Spider

        Indeed. Of course, those appointments were before Republicans considered Orthodox Evil to be a requirement for nomination, even for lower court appointments. They used to avoid true liberals/progressives, but any one else capable (with the right credentials, who donated enough and/or made the right connections, etc.) had a shot; some were arch-conservative but, plainly, not all.

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