Justice Edward R. Korman is the New Hero – And Should be the Hero of Conservatives

For His Attack on Government Trying to Use Authority It Does Not Have

One of the continual themes of Conservatism is that government not only is expanding it power and interference in everyone’s life, it lacks the legal authority to do so.  So Conservatives ought to hail the continued efforts of Federal Judge Edward R. Korman to strike down the federal governments attempts to prevent the so-called Plan B birth control pill from being sold to anyone who wants it.

Under Federal law, the government will approve sale of a product if it is proven to be safe and effective.  Plan B has met this criteria.  But for some reason the government wants to restrict the ability of young women to buy the product.  Actually it is not just some reason, the government feels that these women should not be engaging in sexual activity and so must be prevented from obtaining birth control. 

In an earlier ruling Judge Korman struck down the government restrictions, saying they had no basis in law.  The government has asked him to stay his decision and his answer was an emphatic NO!  Here is some background.

On April 5, 2013, I issued an order directing the defendants--the Commissioner of Food and Drugs and the Secretary of Health and Human Services--to grant the Citizen Petition filed by the plaintiffs and make levonorge strel-based emergency contraceptives available over-the counter and without point-of-sale or age restrictions. I did so because the Secretary's action was politically motivated, scientifically unjustified, and contrary to agency precedent, and because it could not provide a basis to sustain the denial of the Citizen Petition.

And here is the language at the conclusion of the Judge’s decision.

The motion for a stay pending the appeal is denied. Indeed, in my view, the defendants' appeal is frivolous and is taken for the purpose of delay. Nevertheless, as a courtesy to the Courtof Appeals, and to enable it to schedule the motion in the ordinary course, I grant a stay pending the hearing or submission of the defendants' motion for a stay in the Court of Appeals on the condition that the motion for a stay be filed by noon on May 13, 2013.

Basically the Judge has said that the Secretary of HHS had no authority to overrule the FDA and do what she did, that she did so only for political reasons and that she has no basis in law to expect to win on appeal.  (Notice he did stay his decision to allow a possible appellate court to issue a temporary stay, which is likely to happen.)

Conservatives ought to be celebrating in the streets.  For years they have complained of an expanded Federal government and of a judiciary that let’s the Feds get away with it.  So here they should have their new hero, a Judge who stands up to and smacks down arbitrary and capricious actions by the government.

Of course, Conservatives will not do any of that.  They will condemn the Judge, because in reality they are not against government intervening in the private lives of citizens.  They just want government to intervene to force the way they want people to behave.  A gilded statue of the god of hypocrisy goes to the first Conservative commentator to criticize the ruling in their typical nasty manner. 

[Editor's note:  The Dismal Political Economist seems to have no problem criticizing in his typically nasty manner.]