Another Judge Gone Wild

March 24, 2009

It seems that some judges now deem themselves to be not only policy-makers, but medical experts:

A federal judge ordered the Food and Drug Administration yesterday to reconsider its 2006 decision to deny girls younger than 18 access to the morning-after pill Plan B without a prescription.

U.S. District Judge Edward R. Korman in New York instructed the agency to make Plan B available to 17-year-olds within 30 days and to review whether to make the emergency contraceptive available to all ages without a doctor’s order.

In his 52-page decision, Korman repeatedly criticized the FDA’s handling of the issue, agreeing with allegations in a lawsuit that the decision was “arbitrary and capricious” and influenced by “political and ideological” considerations imposed by the Bush administration.

“These political considerations, delays and implausible justifications for decision-making are not the only evidence of a lack of good faith and reasoned agency decision-making,” he wrote. “Indeed, the record is clear that the FDA’s course of conduct regarding Plan B departed in significant ways from the agency’s normal procedures regarding similar applications to switch a drug from prescription to non-prescription use.”

This strikes me as, frankly, incredible.  Admittedly, I have not yet had time to read the judge’s 52-page opinion, but if the Washington Post’s story is accurate, then it appears that a judge has taken it upon himself to declare that minors, who cannot obtain birth control pills without a prescription, must be given access to the morning-after pill on an over-the-counter basis.  Surely teenage girls can be trusted to behave responsibly in using such dangerous “medication” without any medical or other supervision, especially the ones who were responsible enough to get pregnant in the first place. 

Besides the irresponsible nature of the judge’s decision, this goes to the heart of what a judge does.  Should a judge be making policy decisions like this?  The judge says the FDA’s policy was “political”, and then promptly made his own political judgment in setting the policy himself.  The FDA has doctors and decision-makers with (hopefully) the appropriate expertise.  A judge is not appointed for his ability to make medical or political judgments.  He or she is appointed for legal judgments.  Labeling a policy-maker’s judgment as “arbitrary” hardly gives a judge carte blanche to make an equally arbitrary decision (the judge decided that although the FDA arbitrarily set the age requirement for the abortion pill at 18, it should be set at 17 and the FDA must re-examine, within 30 days, whether the age should be lower, which will somehow be less arbitrary).

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