Judge criticizes Obama administration in Plan B decision

In overturning an Obama administration policy on emergency contraception, Judge Edward Korman also wrote a scathing critique of what he described as politics triumphing over policy — one that echoed a 2009 decision he wrote on the same issue that criticized the Bush administration.

"In my 2009 opinion, I traced the evidence demonstrating that the conduct of the FDA was influenced by the Bush White House," Korman wrote. "In the present circumstances, the political interference came directly from the Secretary of Health and Human Services, a member of the President’s Cabinet."

Kathleen Sebelius. (Manuel Balce Ceneta/Associated Press)
Kathleen Sebelius. (Manuel Balce Ceneta/Associated Press)

In 2009, Korman ordered the Food and Drug Administration to reconsider its 2006 decision to deny anyone younger than 18 over-the-counter access to Plan B. The FDA was forced to make Plan B available to 17-year-olds without a prescription and review whether it should be made available to all ages.

In his decision, Korman that the Bush administration's FDA policy was "arbitrary and capricious" and influenced by "political and ideological" concerns. "Political actors," he said, had interfered in the agency's decision-making.

Two years later, under President Obama, the FDA completed its review. FDA Administrator Margaret A. Hamburg concluded that the drug could be used safely by women of all ages — only to be overruled by Health and Human Services Secretary Kathleen Sebelius.

On Friday, Korman called that move "arbitrary, capricious, and unreasonable." Sebelius' actions, he said, were "politically motivated, scientifically unjustified, and contrary to agency precedent."

Obama stands by Sebelius's decision, White House spokesman Jay Carney said Friday.

"He believes it was the right, commonsense approach to this issue," Carney said. "His position has not changed."

Korman is no liberal standard-bearer: He clerked for a former Republican congressman, was appointed by Ronald Reagan and served in the Justice Department under President Richard M. Nixon.

Rachel Weiner covers local politics for The Washington Post.
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