NY judge urged to reject Justice Department request to delay morning-after ruling enforcement

NEW YORK, N.Y. – Reproductive rights advocates urged a judge Monday to let teenage girls buy morning-after birth control without a prescription beginning this week, saying to delay enforcement of his ruling while the government appeals would cause “certain, significant and irreparable” harm to women.

The U.S. Justice Department last week requested that it be given time to appeal last month’s ruling by U.S. District Judge Edward Korman in Brooklyn. It said the judge exceeded his authority when he said women of any age could buy both Plan B and cheaper generic alternatives as easily as they might buy aspirin.

In papers of their own, attorneys for the Center for Reproductive Rights, which filed the lawsuit, said every day that the ruling does not get enforced is “life-altering” to some women.

“Woman of all ages have waited over 12 years for the removal of arbitrary, capricious and politically motivated restrictions that stand in the way of exercising their fundamental right to access emergency contraception and avoiding unwanted or unintended pregnancy,” the lawyers said. “The harm to plaintiffs, and the women whose interests they represent, will be certain, significant and irreparable.”

The Justice Department declined through a spokeswoman Monday to comment on the new court papers.

Korman has scheduled a hearing Tuesday to hear oral arguments on the government’s request. His order is supposed to take effect Friday.

Last week, the Food and Drug Administration loosened its restrictions on the Plan B One-Step morning-after pill, saying it can be sold without a prescription to those 15 and older. Previously, those sales were limited to teenagers who were at least 17. The FDA also said the pill could be sold on drugstore shelves near condoms, instead of locked behind pharmacy counters.

In asking Korman to freeze his ruling until after appeals play out, the Justice Department had argued that “substantial market confusion” could otherwise result.

Attorneys for reproductive rights advocates said the government had little chance at success and there was no reason for delay.

They said a delay for the duration of appeals “will perpetuate — for months, or years — the unconscionable delays that have permeated the defendants’ actions with regard to emergency contraception.”

Korman had been highly critical in his ruling of the government’s behaviour, calling its decision to limit sales of the contraceptive “politically motivated, scientifically unjustified and contrary to agency precedent.”

The FDA was preparing in 2011 to allow over-the-counter sale of the morning-after pill with no agency limits when Health and Human Services Secretary Kathleen Sebelius overruled her own scientists in an unprecedented move.