A federal judge has ruled that all age restrictions on access to the morning-after pill be removed. In doing so he has overridden Kathleen Sebelius’s – yes, Kathleen Sebelius’s – evident stodgy conservatism, or something; Sebelius and the Obama administration had, in 2011, set restrictions on access to the morning-after pill to girls and women ages 16 and older.
Mr. Obama called that decision “common sense.” Judge Edward Korman called it “arbitrary, capricious, and unreasonable.” Arbitrary, capricious, and unreasonable to restrict potentially abortifacient drugs to girls – girls, not women, girls as young as 11 years of age. Judge Korman said that Sebelius’ actions were “politically motivated, scientifically unjustified, and contrary to agency precedent.”
I don’t deny that there is a medical and scientific side to this issue. But come on. This is a disagreement over morality; that’s why the President (even if disingenuously, as the judge charges) referred to the decision as “common sense.” We’re not talking about common sense science; we’re talking about common sense morality. We all shudder at the thought of 14-year-old girls having sex and running to Walgreens to take the morning-after pill. Somehow, our common sense tells us that this is a bad thing, most of all for those girls.
But morality isn’t admissible here; to the judge, this is about science and technical expertise. Says Lewis Grossman, a law professor at American University: “If they’re [i.e., the administration] going to interfere with decisions of expert regulatory agencies, they must find credible scientific justification; otherwise judges will be inclined to step in and stop them.” A moral justification, then, just won’t do. Hence, Judge Korman’s verdict (such as it is): restricting access to emergency contraceptives to an eleven-year-old, because it is not based on science, is an “arbitrary” and “politically motivated” act.
Isn’t there something in the space between “scientific justification” and “arbitrary”? Why is a moral justification precluded outright?
(There’s a related constitutional question here – if it is left to the states to regulate public health, safety and morals through the police powers, can states still regulate Plan B et al.?)