The recent federal district court decision in Tummino v. Torti is a window into the corruption in the Bush Administration, as well as a window into our current culture. Judge Edward Korman held that the FDA had engaged in arbitrary and capricious decisionmaking when it refused to permit a form of emergency contraception, called "Plan B," to be made available over the counter (OTC) to women under 18. The sole question before the FDA involved whether Plan B, available by prescription, would also be made available over the counter. The evidence before Judge Korman has made quite clear that the White House itself interfered with the ordinary science-based processes of the FDA in order to restrict the availability of Plan B for irrational reasons.
-- Prof. Marci Hamilton
Important constitutional liberties are secured in many ways, often enough by ordinary political and administrative processes, and by the acts of various individuals involved. Ditto for the breakdown of their protections. This is shown by the extended delay in the allowance of over the counter sale of "Plan B" aka the morning after pill, its final rule burdening the rights of teenagers (prescriptions needed for those under 18) and to a lesser extent all women (unlike other at times potentially dangerous drugs, they can only be sold in pharmacies/stores staffed by a licensed pharmacist). Sound science, reasonable enforcement concerns and regular procedures were not the guide in this process, and a federal judge (Reagan appointee) found as much.
Ultimately, what is at stake is is equal justice, privacy rights and good health policy, particularly for teenage girls and those for whom a time sensitive (within 72 hours*) means to forestall pregnancy would be a fundamental liberty. Griswold v. Connecticut honored the right to use contraceptives by targeting a policy that burdened a realistic means to obtain them. As the dissents in Poe v. Ullman underlined, there are many ways other than direct prosecutions to burden the right at issue. A policy that made it realistically impossible for clinics to operate was one such burden. There are many others and rights rarely are attacked in blunt fashion. This does not make the attack much less nefarious; in fact, it can be much more insidious.
First, the circumstances have changed since these words were written. Commissioner von Eschenbach has resigned and his replacement, as well as a new Deputy Commissioner, has been nominated by the President. This change in the leadership suggests that, in plaintiffs’ words, it can be “trusted to conduct a fair assessment of the scientific evidence.” Second, a decision whether Plan B, a systemic hormonal contraceptive drug, may be used safely without a prescription by children as young as 11 or 12, is best left to the expertise of the FDA, to which Congress has entrusted this responsibility; it should not be made by a federal district court judge.
-- Tummino v. Torti
The importance of personnel -- attacks on whom are so dubious that those on the other side such as Ted Olsen find them distasteful -- underlines that who is put in an executive position should not be limited to personality. Consider that the power of Lincoln to fill bureaucratic positions was a major concern of the Southern states, not necessarily his (ultimately limited) direct power over slavery. But, what if he appoints postal officials who would allow criticism of slavery? After all, such criticism did not just come from those who supported the rights of blacks as such. As noted here and elsewhere (The Nation covered this ground too), personnel led to some dubious choices in the area of reproductive choice, down to abstinence only funding as federal policy and misleading (at best) materials on governmental websites.
But, addressing the abuses from outside of the executive branch -- as important as such checks are -- are of limited value. Sen. Clinton did yeoman work in this area on Plan B in particular, but as the opinion noted, once a hold was removed, promises made were broken. And, ultimately, day by day decisions need to be left to the agencies. We can underline the importance of having federal courts securing habeas review of those detained under whatever term is currently being used for the conflict at hand without ignoring the limits of those without the power of the purse or sword. This does not mean congressional oversight, the efforts of individuals members, good reporting and interest groups and the courts do not have an important role.
It does mean each have their own role to play, including those of us who elect those making and administrating policy. This is particularly the case when a judge determining that something "is so implausible that it could not be ascribed to a difference in view or the product of agency expertise" is often not going to happen. A lot of bad decisions will not be overturned, or it will take too long to do so without many getting hurt. OTOH, as here, when they do so, it will not always be on constitutional grounds. Except to the degree that review of missteps is an example of the system supposedly working correctly, the overall structure ultimately a type of fundamental liberty (as a Federalist writer noted, the Constitution itself can be deemed a "Bill of Rights").
As here, constitutional liberties will be promoted by honoring the laws as they are written, and addressing those who breach them. All the same, when a statutory breach touches upon matters of fundamental importance, more serious review is likely. This is furthered by those of varying ideologies, as the Ted example above suggests, who promote sound policy (science related, etc.). Sounds like a job for grown-ups.
---
* The time sensitive nature of the pill underlines the importance of wide distribution, even the licensed pharmacy an issue given moral (as Prof. Hamilton notes, largely on clear religious grounds) opposition leading to some pharmacists (and even physicians) opposing its distribution. Since condom use is not similarly burdened, there is a clear gender discrimination going on, tied to antiquated norms on proper behavior.
At times, there is a confusion (intentional or not) with RU-486, which is a clear "abortion pill." Plan B is basically a strong birth control pill, and even if it at times (which is unclear) works after fertilization (it generally clearly works to prevent it), so do various other pills or IUDs. Thus, it clearly falls under Griswold's gambit. As with abstinence only campaigns and so forth, this underlines the breadth of the conservative campaign.