President Obama should really stop fighting against the idea of making the morning-after pill available to anyone who needs to buy it. He really should instruct Health and Human Services Secretary Kathleen Sebelius and Attorney General Eric Holder to admit defeat on the issue, and to just move on. Because what he's fighting for, ultimately, is his own political hypocrisy. Politically, this should be reason enough to throw in the towel on this fight.
The reason this is in the news today is that an appellate court just ruled on a motion in the court case over "Plan B" (and all the other brands of the morning-after pill). Previously, a federal judge had ruled that all such pills would be available over-the-counter, with no age limits. The Obama administration is in the process of appealing this ruling, and had filed a motion to continue the current restrictions until the appeal makes its way through the courts. The appellate court ruled against them, which will mean the two-pill version of the morning-after pill (which was referenced in the original lawsuit) will soon be available without any restrictions, across the land. They also ruled that the one-pill version can continue to have restrictions, since it wasn't technically a part of the lawsuit.
This is a rather momentous ruling, because in many cases appellate courts rule in favor of such "stays" (to continue whatever law currently exists) while the appeal is heard. Courts tend to defer to the status quo, knowing that if they change the current legal conditions before the appeal is ruled on, they may undermine any eventual ruling which returns conditions to some previous state. They tend to shy away from "letting the cat out of the bag," to put it another way. This time they refused to do so. They ruled that while the appeal grinds its way forward, the status quo will change.
It's hard to come up with a clearer case (outside of the national security realm, perhaps) of President Obama fighting against the ideals Candidate Obama once stood for. A little over one month before the 2008 election, the Obama campaign released a policy paper on science, while touting the support of 61 Nobel winners for Obama's views on science and politics. This paper stated:
As president, Barack Obama will lead a new era of scientific innovation in America. We need to end the Bush administration's war on science, where ideology trumps scientific inquiry and politics replaces expert opinion.
Two months after he was elected, I wrote about the Plan B legal situation, and urged Obama to follow through on his promise, saying:
The morning after pill ("Plan B") was in the news because a federal judge just told the Food and Drug Administration to start selling it over the counter without a prescription to women under the age of 18. In a scathing opinion from the bench, the judge made it clear he believed that the decision to limit the over-the-counter status of the drug to adult women was made for political reasons, not scientific ones. Which the FDA is just not supposed to do. The FDA, under Bush, didn't even want to change the status of Plan B in the first place, they would have been much happier to leave it as a prescription-only drug. But they were forced to act, so they did what they could to continue limiting access to the drug to only the women they deemed fit to buy it without seeing a doctor first. The judge found this improper, and sent it back to the FDA drawing boards, telling them to get it right the second time around.
One would fully expect the FDA, under Obama, to reverse this decision and give all women access to the drug without a prescription. Politically, Obama doesn't have a whole lot to lose by doing so, and (theoretically) the FDA is supposed to be independent of political influence anyway, so Obama can even take a hands-off approach to the issue, which only further limits any political liability from reversing this decision. But instead of doing so, Obama should get out in front of the issue and declare strongly:
"This is exactly what I was talking about when I said I wanted to 'restore scientific integrity to government' and ensure that scientific data are 'never distorted or concealed to serve a political agenda.' I meant what I said, and we will listen to scientific opinion on this issue, and decide accordingly. The only questions worth asking about Plan B are 'Is it safe?' and 'Is it effective?' and those are the only things which will influence our decision."
Obama, needless to say, did not take my advice. Instead -- in an unprecedented move -- HHS Secretary Kathleen Sebelius overruled a panel of FDA scientists who had recommended no restrictions, which had the result of forcing women under the age of 18 to get a prescription in order to gain access to Plan B.
We now jump forward to 2013. A few months ago, in an absolutely scathing ruling, the federal judge in the case ruled that Sebelius' position was "a strong showing of bad faith and improper political influence," calling it "arbitrary, capricious, and unreasonable." This ruling concluded:
More than twelve years have passed since the Citizen Petition was filed and eight years since this lawsuit commenced. The FDA has engaged in intolerable delays in processing the petition. Indeed, it could accurately be described as an administrative agency filibuster. Moreover, one of the devices the FDA has employed to stall proceedings was to seek public comment on whether or not it needed to engage in rulemaking in order to adopt an age-restricted marketing regime. After eating up eleven months, 47,000 public comments, and hundreds of thousands, if not millions, of dollars, it decided that it did not need rulemaking after all. The plaintiffs should not be forced to endure, nor should the agency's misconduct be rewarded by, an exercise that permits the FDA to engage in further delay and obstruction.
This is the ruling which will now be allowed to be implemented. In denying the Obama administration the stay it was asking for, the court agreed with this judge's original ruling that Obama, Sebelius, and Holder are doing nothing more than engaging in "further delay and obstruction."
This is a victory for science. It is a victory over the same sort of thing Candidate Obama slammed Bush for doing: "where ideology trumps scientific inquiry and politics replaces expert opinion." Plan B is medically safer than many other over-the-counter drugs sold to anyone of any age. There is simply no scientific or medical reason not to put it on the shelves next to the aspirin, to put this another way. As for the moral argument, how many people who are against Plan B being sold to anyone of any age feel the same way about condoms? To be morally consistent, you'd have to make the same argument -- which, I notice, nobody seems to be making. In fact, even some intelligent Republicans are now making the argument for wider access to Plan B. This extraordinary article, written by a physician/politician chastising his own party's views, begins:
All of the new Oklahoma laws aimed at limiting abortion and contraception are great for the Republican family that lives in a gingerbread house with a two-car garage, two planned kids and a dog. In the real world, they are less than perfect.
As a practicing physician (who never has or will perform an abortion), I deal with the real world. In the real world, 15- and 16-year-olds get pregnant (sadly, 12-, 13- and 14-year-olds do also). In the real world, 62 percent of women ages 20 to 24 who give birth are unmarried. And in the world I work and live in, an unplanned pregnancy can throw up a real roadblock on a woman's path to escaping the shackles of poverty.
It's tough when even some Republicans are making more sense on an issue than the president. This is a losing battle for Obama, because the harder he fights it the more he's fighting against his own stated views on science and politics. Oh, sure, Obama can fight this battle all the way up to the Supreme Court, if he really wants to. But the position he has staked out is exactly what he denounced George W. Bush for doing -- putting politics ahead of science. Obama should really go back and read that position paper he released while he was still Candidate Obama. And then he should gracefully admit defeat, and move on to some more effective use of the Justice Department's time.
[Note: I retrieved the language from the Obama campaign position paper from a database with a paywall, so I apologize for not providing a link. And I heartily encourage everyone to read the full article that last link points to (which is nothing short of amazing), written by an Oklahoma state-level Republican who is a doctor who has delivered more than 800 babies.]
-- Chris Weigant
Cross-posted at The Huffington Post
Follow Chris on Twitter: @ChrisWeigant