U.S. District Court Overreaches in Morning After Pill Ruling: Action needed to protect Children and parental rights

In Tummino v. Hamburg, 12-CV-763, Judge Korman, of the U.S. District Court, Eastern District, which resides in Brooklyn, New York, held that the Secretary of Health and Human Services improperly overruled the FDA Commissioner to prevent the morning after pill or “plan-B” from being available over the counter, without a prescription, to any female regardless of age. That’s right, an 11-year-old can buy these hormonal drugs on their own. In the memorandum and ruling, the judge found that the FDA should have granted a citizen petition and delved into scientific studies. Judge Korman’s expertise is not cited, let alone established. There is discussion of the FDA as the body charged by Congress to make decisions in this field. Judge Korman found that there was “significant political pressure” involved. The restriction on those under 17 receiving the drug without a prescription was found to be arbitrary and capricious.

Although Griswold v. Connecticut is cited, there is no right to privacy issue in this case and the lowest level of scrutiny should have been applied on this issue. The restriction is rationally related to a legitimate government interest. That interest is in not having potentially dangerous drugs in the hands of minors, or even drugs without adequate study being made available. Furthermore, when did parents lose their rights to control their child’s health?

If this activist court wishes to insert itself in this fashion, it is up to federal, State and even local legislators to come up with legislation to nullify this decision. Our Congressional delegation and those within this circuit should immediately get to work on ameliorative legislation. Barring preemption, legislation in the New York State legislature addressing the concerns of this case and spelling out the governments interest in protecting children and parents rights, must be introduced.

Finally, a resolution from the New York City Council, condemning the decision, and supporting federal and State legislation as mentioned above, should immediately be introduced.

Which legislators will take up this cause?- let’s get some response now!

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