Justice Department appeals ‘morning-after’ pill ruling

By KATHRYN SMITH | 5/1/13 8:01 PM EDT

The Department of Justice logo is shown. | AP Photo

The Department of Justice appealed Wednesday a federal judge’s decision directing the FDA to offer a morning after pill over the counter to women and girls of all ages.

The appeal comes a day after the FDA approved an application from a manufacturer to make Plan B One-Step available to women and girls age 15 and older without a prescription — a decision that the FDA said had nothing to do with the pending court case over the emergency contraception availability.

Judge Edward R. Korman of the U.S. District Court for the Eastern District of New York issued a ruling in early April ordering the FDA to make emergency contraception available over the counter to all ages within 30 days.

In a court filing, the federal government asked for a stay so that the FDA would not be forced to comply with that decision immediately, and argued that the court didn’t have the authority to control the FDA’s decision.

“This court lacks subject matter jurisdiction to review any aspect of [the manufacturer’s application], including the HHS Secretary’s December 2011 directive to the FDA Commissioner to issue a complete response letter that rejected that SNDA. A district court does not have jurisdiction to review such agency action,” the DOJ states in a court filing.

Korman’s decision came after HHS Secretary Kathleen Sebelius vetoed in late 2011 a recommendation from the FDA that Plan B One-Step be available over the counter to women and girls of all ages, dictating that women under age 17 must have a prescription to get it. President Barack Obama publicly expressed support for Sebelius’s decision.

After the appeal, Nancy Northup, president and CEO of the Center of Reproductive Rights, which filed suit against the FDA, said in a statement, “Women who urgently need emergency contraception have been delayed in getting it or denied access entirely for more than a decade because of the political maneuverings of the last two presidential administrations.”

“We are deeply disappointed that just days after President Obama proclaimed his commitment to women’s reproductive rights, his administration has decided once again to deprive women of their right to obtain emergency contraception without unjustified and burdensome restrictions.”

This article first appeared on POLITICO Pro at 7:58 p.m. on May 1, 2013.

Thank you to Politico for this story.


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