Time to Fire a Judge?

Last month US Federal Judge Edward Korman ruled that the Food and Drug Administration must permit the morning after pill—the so-called Plan B pill—to be sold over the counter, to be stocked on store shelves rather than held behind the pharmacist’s counter, and to be saleable to “women” of all ages—i.e., including to children.  And saleable to these children without any parental involvement, which is the outcome of eliminating the FDA’s by-prescription and age-limited sales.  That’s bad enough.

Now, though, in response to the government’s decision to appeal this ruling and to ask that Korman stay his order pending that appeal, Korman is cynically decrying as politics the government’s objection to his interference in family matters—while demonstrating the involvement of his own politics in this matter.

Korman told an assistant US attorney that the FDA ruling [partially implementing Korman’s ruling] was a cynical attempt to “sugarcoat this appeal of yours.”

I don’t often agree with this administration, but on this matter, I do.  Korman went on, accusing Justice’s lawyer of “intellectual dishonesty” and calling further delays “a charade.”  Because the lawyer disagreed with Korman’s ruling and its efficacy.

He wasn’t finished.

When the government lawyer argued that delaying Korman’s order while it was on appeal was in the public interest, the judge responded, “Is there a public interest in unwanted pregnancies…that can often result in abortions?”

And

The judge…expressed outrage at another provision under the new FDA rules that would require government-issued photo identification to get the pills, placing an “impossible burden” on disadvantaged people without IDs.

And

“The poor, the young and African-Americans are going to be put in the position of not having access to this drug,” [Korman] said.

Minors are, by definition, incapable of making their own decisions without adult guidance.  Thus, I have some questions for Korman:

  • is there a public interest in allowing minors to act on so serious a matter solely on their own recognizance?
  • is there a public interest in cutting parents out of the decision-making of their minor children, leaving children with no adult guidance?

Korman’s objection concerning access plainly is not true.  Parental involvement gives them the access those parents—not a remote, disinterested judge—deem appropriate.  The prescription gives them access through the guidance of another adult—generally with the parents involved here, also.

And so a final question:

  • is there a public interest in leaving the many unaided by adult guidance by barring an imperfect system which, if implemented, would leave a few without that guidance?

Korman’s arrogance in decrying the government’s representatives and the government for their daring question his ruling with its pseudo-logic, frankly, is worse than his ruling with its pseudo-logic.  Judges aren’t kings whose decisions are above the questioning of the judges’ inferiors.  Korman needs to be reminded of that.  Forcefully.

In the end, Korman officially refused to stay his order pending appeal.  In his ruling, he opined, in part,

that if the status of these drugs is changed and later reversed, it can lead to situations in which women mistakenly believe that they can obtain the drug without a prescription or at certain locations where it used to be available, but is no longer.

This argument assumes that defendants have a likelihood of success on the merits and is largely an insult to the intelligence of women.

Because the children newly granted access behind their parents’ backs are women.  And because Korman has never dealt with a government rule from the outside, being himself inside government.

On the question of identification, Korman does have a valid point:

He also questioned why the government takes an opposite position in voting-rights cases, where the US has argued that identification requirements discourage some people from voting.

But this isn’t enough to validate his overall ruling or his refusal to stay it pending appeal.  He still needs to be reminded, decisively, of his place in our employment as a member of our government.

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