Plan C on Plan B

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

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The controversy over Judge Edward Korman’s ruling on the Plan B “morning after pill” has us thinking not so much about the rights of women but rather the rights of parents. The judge, one of the sagest jurists serving on the federal bench, handed down his decision in the case of a Brooklyn activist for feminist causes, Annie Tummino, who is suing the federal Food and Drug Administration in an effort to make the Plan B pill available without a prescription. The judge ruled in her favor, ordering the government to permit Plan B to be sold over the counter to anyone, even children as young as, say, 11 who don’t have permission from their parents.

This has ignited quite an uproar, though the judge ruled a narrow point. He describes it as involving “the interpretation of a general statutory and regulatory scheme relating to the approval of drugs for over-the-counter sale.” He notes that the standards “are the same for aspirin and for contraceptives.” He acknowledges doubts about whether adolescents are able “to make reasoned decisions about engaging in sexual intercourse.” He concludes that the standard for determining whether any drug should be sold over the counter turns solely on the ability of the consumer to understand how to use the particular drug “safely and effectively.”

In other words, he didn’t see it — or make it — his job to rule on the moral issues that obtain in respect of Plan B. Nor did he focus on what one might call the good parenting issues. These trouble parents on the right and left, including, it turns out, the President, who is the father of two girls and who, according to USAToday, has said it is but “common sense” that the drug not be available “alongside bubble gum or batteries.” It is not every day one gets President Obama on the same side of an issue as, one can imagine, Timothy Cardinal Dolan or the Torah sages.

It strikes us that those issues are better dealt with in the Congress, or what we are sometimes prone to call “Plan C.” By our lights the right move for Congress would be to reinforce the authority of the parents, who, after all, would be paying for any pills any 11 year old purchases. Parental authority is under broad attack in the American courts. Our favorite recent case involved the question of whether violent video games can be sold to children without parental consent. Such a ban was attempted on the Coast, at California, until the Supreme Court of the United States clobbered the state with the First Amendment.

The vote was seven to two, with one of the high court’s most liberal justices, Stephen Breyer, and its most conservative, Clarence Thomas, issuing separate dissents. Wrote Justice Thomas: “The practices and beliefs of the founding generation establish that ‘the freedom of speech,’ as originally understood, does not include a right to speak to minors (or a right of minors to access speech) without going through the minors’ parents or guardians.” Justice Breyer wondered why it was okay for the state to block children from reading pornography but to play violent video games. Both of them seemed to understand that on a net basis parents are a better authority for children than the government.


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