"You're disadvantaging young people, African Americans, the poor—that's the policy of the Obama administration?"—District Court judge Edward Korman this morning, "in a charged and dramatic two-hour hearing in which the Obama administration defended its arbitrary policy to limit contraceptive access."
Korman was explaining why, when previously ruling on access to Plan B emergency contraception, he had initially waited for the administration to act on its own and make the drug widely available based on scientific evidence, rather than on politics. "The process had been corrupted by political influence. I remanded because I thought with a new president," things would be different, Korman said. But in 2011, Secretary of Health and Human Services Kathleen Sebelius overruled, with the president's explicit blessing, the FDA's recommendation to lift all age restrictions, which Korman ruled in March was a decision made in "bad faith" because of the politics around sex and contraception. He ordered the administration to lift all restrictions, but instead, it accepted a manufacturer's petition to make Plan B available over the counter only with photo ID showing the purchaser was at least 15, and the Department of Justice is appealing.Daaaaaaaaaaaaaamn. Irin Carmon's got much more here.
This morning, Korman repeatedly slammed his hand down on the table for emphasis, interrupting the government counsel's every other sentence with assertions like, "You're just playing games here," "You're making an intellectually dishonest argument," "You're basically lying," "This whole thing is a charade," "I'm entitled to say this is a lot of nonsense, am I not?" and "Contrary to the baloney you were giving me…" He also accused the administration of hypocrisy for opposing voter ID laws but being engaged in the "suppression of the rights of women" with the ID requirement for the drug.
...The government didn't argue the merits of requiring a photo ID or that the drug only be sold in locations with an on-site pharmacy, but Korman made clear why he found that to be an inadequate compromise: "You're using these eleven and twelve-year-olds to place an undue burden on women's ability to access emergency contraception. If it's an impediment to voting, it's an impediment to get the drug."
He cited Brennan Center statistics — which he said Eric Holder had also cited in a speech before the NAACP — showing that 25 percent of African-Americans of voting age don't have a photo ID, and also dismissed the government's suggestion that 15-year-olds, who usually aren't eligible for a driver's license, could use a birth certificate, since that's not a photo ID. "You're disadvantaging young people, African Americans, the poor — that's the policy of the Obama administration?" (He didn't mention it, but immigrants would also face additional barriers.)
...[Frank Amanat, arguing on behalf of the administration] argued that making a hormonal drug like Plan B over the counter was unprecedented, and that the public interest was served "when the government acts deliberately and incrementally." Korman cut in sarcastically, "Tell me about the public interest. Is there a public interest in unplanned pregnancies? Some of which end in abortions?"
Korman, a Reagan appointee, said he would rule on the administration's request for a stay by Thursday evening. He is expected to deny it but defer on the stay's enforcement to the Second Circuit, where the case goes next.
[H/T to Jordan.]