A federal judge on Friday ordered that the most common morning-after pill be made available over the counter for all ages, instead of requiring a prescription for girls 16 and younger. But his decision raises a broader question about whether a Cabinet secretary can decide on a drug's availability for reasons other than its safety and effectiveness.
Judge Edward Korman of the Eastern District of New York accused the Obama administration of putting politics ahead of science. He concluded that the administration had not made its decisions based on scientific guidelines, and that its refusal to lift restrictions on access to the pill was "arbitrary, capricious and unreasonable."
He said that when the health and human services secretary, Kathleen Sebelius, countermanded a move by the Food and Drug Administration in 2011 to make the pill, which helps prevent pregnancy after sexual intercourse, universally available, "the secretary's action was politically motivated, scientifically unjustified, and contrary to agency precedent."
Sebelius said at the time that she was basing her decision on science because she said the manufacturer had failed to study whether the drug was safe for girls as young as 11, about 10 percent of whom are physically able to bear children. But her decision was widely interpreted as political because emergency contraception had become an issue in the abortion debate.
At the time, President Barack Obama was campaigning for re-election. He said then that he was not involved in the decision but supported it. "As the father of two daughters: I think it is important for us to make sure that we apply some common sense to various rules when it comes to over-the-counter medicine," he said.
He reiterated that position Friday through White House spokesman Jay Carney. Carney declined to comment on whether the administration would appeal. A Justice Department spokeswoman said the department was reviewing the order.
Many groups that are part of Obama's political base praised the decision to make the emergency contraceptive pill more easily available.
Conservative and antiabortion groups assailed the judge's decision, suggesting that it may allow the pill to be given to young girls without their consent.
The judge's decision, a rare case in which a court has weighed in to order that a drug be made available over the counter, could test the question of who gets the final say in such matters.
"Technically the secretary under the law has the right to make the decision," said Daniel Carpenter, a professor of government at Harvard. "But there is other long-established law that says the decision is supposed to be based on the safety and efficacy of the drug."