Why Conservative Bloggers are Wrong about the Morning After Decision

As I read through the blogosphere, I have come across a couple of pieces blasting US District Judge Korman for his recent decision ordering the "Morning After Pill" made available for all women, no matter the age.  I will be the first to admit this is a travesty, a minor should not be making such decisions free of the consent and wisdom of their parents.  Yet, that is not the measure of the opinion, from what I've read.  Here's the key part I think we need to look at:

I pause to add these brief words before I begin the discussion of the legal issues. This case has proven to be particularly controversial because it involves access to emergency contraception for adolescents who should not be engaging in conduct that necessitates the use of such drugs and because of the scientifically unsupported speculation that the drug could interfere with implantation of fertilized eggs. Nevertheless, the issue in this case involves the interpretation of a general statutory and regulatory scheme relating to the approval of drugs for over-the-counter sale. The standards are the same for aspirin and for contraceptives. While the FDA properly recognizes that cognitive and behavioral differences undermine “the ability of adolescents to make reasoned decisions about engaging in sexual intercourse,” the standard for determining whether contraceptives or any other drug should be available over-the-counter turns solely on the ability of the consumer to understand how to use the particular drug “safely and effectively.” Ex. A-4 to Pls.’ 2007 Mot. for Summ. J. at T-31097, Case No. 05-cv-366, Doc. No. 235-5. I decide this case based only on my understanding of the applicable standard.

 See, this piece strikes at the heart of what I see as being a constitutional and conservative judicial ruling.  The decision is not about morality, because that is not the role of the courts!  The decision is about whether a political bureaucrat, in this case Kathleen Sebelius, can override statutory standards for determining whether drugs should be allowed over the counter based upon their own beliefs.  That answer should clearly be no.

See, we've gotten so used to judges arbitrating right and wrong, even as conservatives, we forget that's not their role.  If you don't like the statuettes, then vote!  The legislature should be where these decisions are decided, not the court room.  The FDA should apply the law that congress gives them.  Heaven help us, we know that doesn't happen enough right now, but that doesn't mean this court is wrong.  Conservatives should laud this decision, as a judge refusing to allow himself and a bureaucrat to supersede the law.


Note:  I'm not a lawyer, there's sure to be legal stuff I don't understand, and I wonder if I misconstrue something.