In December 2011, President Obama’s Health and Human Services Secretary, Kathleen Sebelius, prohibited pharmacists from selling the morning-after pill to girls under 17 without a prescription. In doing so, the administration overrode a recommendation from Food and Drug Administration scientists—a move that women’s rights activists protested. Six years earlier, President George W. Bush’s top health official had resigned from the FDA over the administration’s refusal to allow over-the-counter sales to adults. With Sebelius’s decision, activists’ higher hopes for the Obama administration were dashed. “We are outraged that this administration has let politics trump science,” the president of the Reproductive Health Technologies Project told the New York Times.
The Center for Reproductive rights sued HHS and the FDA, and today a federal court decided the Obama administration had gone too far. In a ruling this morning, Judge Edward Korman of the US. District Court for the Eastern District of New York used unsparing language in overturning the ban:
“The F.D.A. has engaged in intolerable delays in processing the petition. Indeed, it could accurately be described as an administrative agency filibuster. … The plaintiffs should not be forced to endure, nor should the agency’s misconduct be rewarded by, an exercise that permits the F.D.A. to engage in further delay and obstruction.”
Don’t expect the president to criticize the court’s ruling too loudly. At the time Sebelius made her decision, Catholic bishops were protesting birth control provisions in the Affordable Care Act, a controversy that is still ongoing. It became an issue during the Republican primary, with Obama twice changing the rules to accommodate protests from religious groups. Women’s advocates said the administration was restricting the morning-after pill to avoid further antagonizing Catholics.
Of course, whatever disagreements women voters had with Obama, they overwhelmingly backed him over Mitt Romney for president. (The controversy around GOP Congressman Todd Akin’s claim that women’s bodies have ways to shut down a pregnancy in the case of a “legitimate” rape helped to push the differences between women’s health advocates and Obama into the background.)
In overturning the policy, Judge Korman may have done Obama a favor: defusing a source of tension with women voters while drawing the ire of the religious right away from the president—and toward the courts.