Calling government appeals "frivolous" and "taken for the purpose of delay," Eastern District Judge Edward Korman (See Profile) on May 10 declined to stay enforcement of his order to make "morning after" birth control pills available to women of all ages without prescription. However, the judge did postpone implementation of the order until noon today to allow the U.S. Justice Department to submit a stay motion to the U.S. Court of Appeals for the Second Circuit. The government had warned that "substantial market confusion" could result if Korman’s ruling was enforced while appeals are pending.
In early April, Korman directed the government in Tummino v. Hamburg, 12-cv-763, to grant a denied citizen petition, filed with the Food and Drug Administration, to make emergency contraceptives available without restriction; Korman held the FDA denial of the petition was inevitable after Health and Human Services Secretary Kathleen Sebelius, with "obviously political" motivation, scuttled agency plans to let the drug be marketed without restriction (NYLJ, April 8). "If a stay is denied, the public can have confidence that the FDA’s judgment is being vindicated, and if a stay is granted, it will allow the bad-faith, politically motivated decision of Secretary Sebelius, who lacks any medical or scientific expertise, to prevailthus justifiably undermining the public’s confidence in the drug approval process," Korman wrote on May 10.
