- The Washington Times - Friday, April 5, 2013

A federal judge’s rebuke of how the Obama administration tried to restrict young teenage girls’ access to morning-after pills opened a new vein in a festering debate over emergency contraception, which conservative critics equate with abortion.

Only this time, pro-life groups trod along narrow common ground with the Democratic president they have sparred with for years because of a mandate in his signature health care law that requires most employers to insure a broad spectrum of contraceptive drugs.

U.S. District Court Judge Edward Korman on Friday said Health and Human Services Secretary Kathleen Sebelius made an “obviously political” decision in 2011 — one year before President Obama’s re-election — to prohibit the sale of Plan B One-Step and its generic forms to girls younger than 17 unless they had a prescription.

In a blunt 59-page decision, he ordered the Food and Drug Administration to lift the age restriction within 30 days.

Pro-life groups have railed against the Obama administration for requiring faith-based nonprofits and corporations with religiously devout owners to insure contraception — including morning-after pills — under the Affordable Care Act. Dozens of lawsuits have been filed to contest the mandate, which may be headed for the Supreme Court.

Yet news of Judge Korman’s decision to broaden teen girls’ access to emergency contraception found pro-life groups aligned with the White House — at least for a moment. The Susan B. Anthony List condemned the ruling, noting Mr. Obama and Mrs. Sebelius had “agreed that requiring a prescription for potentially dangerous drugs is common sense.”

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“Teen girls need parents, not unfettered access to abortion-inducing drugs,” SBA President Marjorie Dannenfelser said.

Judge Korman’s unfavorable reading of Mrs. Sebelius’ actions focused on a 2011 memo to FDA Commissioner Margaret Hamburg that described “significant cognitive and behavioral differences” between older adolescents and girls just entering their reproductive years.

The directive from HHS amounted to an unprecedented override of the FDA, which had supported expanded access to Plan B and its associated drugs. Yet the judge also accused the latter agency of dragging its feet.

“The FDA has engaged in intolerable delays in processing the petition,” he wrote. “Indeed, it could accurately be described as an administrative agency filibuster.”

HHS referred requests for comment on the ruling to the Department of Justice, although an official said the agency’s “concern always has been and remains the health of young women nationwide.”

“The Department of Justice is reviewing the appellate options and expects to act promptly,” spokeswoman Allison Price said.

The drug’s manufacturer, Teva Pharmaceuticals, also said it is reviewing the decision and has no immediate comment.

Yet Judge Korman’s decision for the Eastern District of New York reopens debate around a genre of drugs that has been in the political spotlight for years, particularly with the passage of Mr. Obama’s health care reforms. Last month, a bloc of House conservatives gathered with religious figures to unveil a bill that would exempt employers from the contraception mandate within “Obamacare” if it violates their religious freedoms or conscience.

Opponents of Mr. Obama’s mandate take particular exception to emergency drugs such as Plan B and Ella, which they refer to as “abortifacients” because of their reported capacity to distort the lining of the uterus.

Judge Korman said controversy around the case was exacerbated by the “scientifically unsupported speculation that the drug could interfere with implantation of fertilized eggs,” and because it dealt with access to emergency contraception for “adolescents who should not be engaging in conduct that necessitates the use of such drugs.”

Pro-choice activists and at least one Democratic politician quickly cheered the decision in Tummino v. Hamburg.

The Planned Parenthood Federation of America hailed the ruling as a “significant and long-overdue step forward for women’s health that will benefit women of all ages.”

“[Friday’s] ruling highlights the importance of Food and Drug Administration regulations being based on science, not politics,” said Sen. Patty Murray, Washington Democrat.

• Tom Howell Jr. can be reached at thowell@washingtontimes.com.

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