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Judge strikes age restrictions for "morning after" pill

Last Updated 3:00 p.m. ET

NEW YORK The Food and Drug Administration must make emergency contraceptives available to girls of all ages within 30 days, a federal judge has ruled, saying the agency's decisions regarding the so-called morning-after pill were "arbitrary, capricious and unreasonable."

The ruling by U.S. District Judge Edward Korman came as the result of a lawsuit brought by reproductive-rights advocates, who had sought to remove age and other restrictions on the so-called "morning after" pill.

The Center for Reproductive Rights and other groups have argued that contraceptives are being held to a different and non-scientific standard than other drugs, and that politics has played a role in decision-making. Social conservatives have said the pill is tantamount to abortion.

The morning-after pill currently is available without a prescription only to those 17 and older who can prove their age. Younger teenagers must get a prescription.

In 2011 the Food and Drug Administration had been prepared to lift a controversial age limit and make Plan B One-Step -- the nation's first over-the-counter emergency contraceptive -- available for purchase by people of any age without a prescription.

But in December of that year Health and Human Services Secretary Kathleen Sebelius blocked the move, deciding that young girls shouldn't be able to buy it on their own. Sebelius said that while young girls are physically capable of bearing children, they might not properly understand how to use the emergency contraception without guidance from an adult.

President Barack Obama said at the time he supported Sebelius' decision.

In his ruling Judge Korman said Secretary Sebelius' directive to the FDA to reject Plan B One-Step for OTC sales "forced the agency to ride roughshod over the policies and practices that it has consistently applied in considering applications for switches in drug status to over-the-counter availability."

The judge said the FDA decided after 11 months, 47,000 public comments and hundreds of thousands, if not millions, of dollars spent, that it did not need rulemaking on the subject.

"The plaintiffs should not be forced to endure, nor should the agency's misconduct be rewarded by, an exercise that permits the FDA to engage in further delay and obstruction," he wrote.

He said the case isn't about the potential misuse of the morning-after pill by 11-year-olds. He said the contraceptives would be among the safest drugs sold over-the-counter and the number of 11-year-olds likely to use the drugs was minuscule.

Four years ago, Korman was highly critical of the government's handling of the issue when he ordered the FDA to let 17-year-olds obtain the medication. At the time, he accused the government of letting "political considerations, delays and implausible justifications for decision-making" cloud the approval process.

Andrea Costello, an attorney with the Partnership for Civil Justice Fund, called it "a landmark decision in terms of providing women and girls in the United States access to a safe and effective form of birth control."

F. Franklin Amanat, a lawyer for the government, said the Department of Justice has no immediate comment.

"We are reviewing the decision and evaluating the government's options," he said.

White House press secretary Jay Carney referred reporters' questions on the legal ruling to the Department of Justice during a Friday afternoon press conference. However, he added that the president supported Secretary Sebelius' earlier decision, and his position has not changed.

"He believes it was the right, common sense approach," said Carney.

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