When it comes to smart rulemaking, Plan A is for a strong and capable president to guide the executive branch in the service of the public interest. Fortunately, there’s also a Plan B: judges who have the backbone and intellectual honesty that are sometimes lacking at the White House.
The legal Plan B recently helped bring the pharmaceutical Plan B within easier reach of everyone who may need it.
U.S. District Judge Edward Korman scathingly reversed a 2011 decision by Health and Human Services Secretary Kathleen Sebelius that made emergency contraception available without a prescription only to women 17 and older. Sebelius’ decision came out of the blue, since the U.S. Food and Drug Administration had approved over-the-counter sales for women and girls of all ages.
In addition to limiting access for teenagers, the decision meant that pharmacies had to keep the drug off open shelves, making it less readily accessible for older women - especially because not every pharmacy carries the drug. Emergency contraception is most effective when taken as soon as possible following unprotected sex, which makes ready access critical to its efficacy. Women who are forced to wait until they can see a doctor or speak with a pharmacist on duty lose valuable time.
Sebelius claimed that there was not enough evidence that girls at the very beginning of potential childbearing age could follow the instructions for how to take the pills properly. Specifically, she expressed concern about the “10 percent of girls [who] are physically capable of bearing children by 11.1 years of age.”
As I wrote at the time, however, Sebelius actually seemed to be less interested in the fates of 11-year-olds and more interested in the political fate of the president. While President Obama claimed he “did not get involved in the process” of deciding who should and should not have access to emergency contraception, he spent time with Sebelius immediately before her announcement, and endorsed her position after the fact when she came under fire from family planning advocates.
As a Democrat, Obama has a bit more leeway to endorse reproductive freedom without political backlash than a Republican president would, but there are still sizable segments of the Democratic base, as well as independent voters, who identify as socially conservative. With an election looming, Obama was not about to start granting teenagers access to Plan B, no matter what the scientific or public health merits. He was perfectly aware that the courts might overturn Sebelius’ decision, which would at least keep his administration’s fingerprints off the matter. Further, such a reversal would probably come after the voting was over.
So what if the decision hurt girls under 17 in the meantime? They don’t vote in presidential elections.
Korman interpreted Sebelius’ decision the same way I did. In a strongly worded opinion, he called Sebelius’ supposed concerns about the safety of 11-year-olds “an excuse to deprive the overwhelming majority of women of their right to obtain contraceptives without unjustified and burdensome restrictions.” He also argued that Sebelius’ justifications were “so unpersuasive as to call into question her good faith,” and concluded that the “motivation for the secretary's action was obviously political.”
The administration is weighing its appeal options, but I suspect it may not even fight back. If it does, an appeal will just be an exercise in going through the motions. It’s likely that Obama was counting on a decision like Korman’s all along.
Obama’s treatment of emergency contraception mirrors the strategy he has taken on marriage rights for gays, which he now claims to support while continuing to pursue a policy of legal discrimination under the Defense of Marriage Act. On both issues, Obama has offered enough nominal support to appear to back reform, while stopping short of using his power to do so. He leaves any real change up to the courts.
Korman barbed his opinion with jabs aimed at Sebelius - and, by extension, the president - but in the end, he was willing to do the administration’s dirty work. It is less clear whether the Supreme Court will do the same. The oral arguments in the recent challenge to DOMA began with a prolonged discussion of the procedural hurdles created by the president’s strange position of officially condemning the law as unconstitutional while continuing to enforce it. The justices seemed genuinely puzzled by the question of how to deliver a judgment in a case where both sides claimed to want the same thing. During the arguments, Chief Justice John G. Roberts Jr. suggested that the problem was that Obama lacked “the courage of his convictions.”
For 16-year-old girls in need of Plan B and 83-year-old lesbian widows like the plaintiff in the DOMA case, the courts are the only hope when the executive branch chooses to sidestep politically cumbersome issues. It’s too bad they have to take on the legal firepower of the White House and the Justice Department just to get the administration to do what it should have done in the first place.
Plan B is important, and I am glad it will soon be more readily available to women and girls who need it. But whether your goal is to prevent unwanted pregnancies or unwanted policies, Plan A should always come first.