Judge denies appeal to block all-ages Plan B ruling

Michael Winter, USA TODAY | USA TODAY

Rebuking the Obama administration for a "frivolous" appeal, a federal judge Friday refused to delay his April order allowing emergency contraceptives to sold to women and girls of all ages without a prescription.

But U.S. District Judge Edward Korman of Brooklyn gave the Justice Department until Monday noon to ask the 2nd U.S. Circuit Court of Appeals in Manhattan to again delay implementation of his decision that the so-called morning-after pill should be sold over the counter like aspirin.

Last month, Korman had given the Food and Drug Administration 30 days to lift all age limits on Plan B and a cheaper generic, made by Israel-based Teva Pharmaceutical Industries.

Last week, the FDA approved sales of the Plan B One-Step generic without a prescription to women and girls at least 15 years old with a government-issued identification. The agency said its action was not a response to Korman's April 5 ruling.

The next day, the Justice Department said it would appeal the judge's all-ages order. In a letter to Korman, U.S. Attorney Loretta Lynch told him he had exceeded his authority.

The administration had warned that "substantial market confusion" could result if Korman's ruling was enforced while appeals are pending.

Friday, Korman dismissed the reasoning as a "silly argument," calling it a delaying tactic and "largely an insult to the intelligence of women."

He wrote Friday that if there is any market confusion, the Obama administration bears responsibility by seeking to further delay sales of the pill to women of all ages.

After nearly a decade of debate, the FDA was ready in 2011 to lift all age restrictions on Plan B and let it be sold over the counter. But in an unprecedented move, Health and Human Services Secretary Kathleen Sebelius overruled the agency's scientists and set the age limit at 17. She subsequently supported lowering the age to 15.

The judge said the appeals were "taken solely to vindicate the improper conduct" of Sebelius, "and possibly for the purpose of further delaying greater access to emergency contraceptives for purely political reasons." He called Sebelius' action "politically motivated, scientifically unjustified and contrary to agency precedent."

He said last week's FDA action had created "nonsensical rules" that favored the generic version over the brand name pill and were intended to "sugarcoat" the appeal.

Robert Nardoza, a spokesman for the U.S. attorney's office in Brooklyn, told the Associated Press the Justice Department was considering its options.