The legal consideration was that the Second Circuit Court of Appeals last week declined part of the administration's request to halt District Judge Edward Korman's ruling ordering the over-the-counter sale of Plan B One-Step. A three-judge panel on the appeals court decreed that the two-pill variant of the contraceptive must be available on the market immediately but agreed to halt Korman's ruling on the one-pill variant.
That left the administration with two bad options because they believe the scientific data on the safety of the one-pill variant is stronger than the data on the two-pill variant. (Reproductive rights groups dispute that, citing studies saying both versions of the pill are safe for women and girls of all ages.) If the two-pill variant was going to be available on the market, the White House concluded that it didn't make sense to fight to block the one-pill variant.
"So the decision was that it made more sense -- if the idea was that girls should use this drug appropriately, it made more sense to let both versions on the market," the official said.
This was a rare issue where Obama and women's advocates were at odds. Reproductive rights advocates -- and Judge Korman -- had strongly criticized the administration's decision-making on Plan B as motivated by politics and not sound science. The upside for Obama is giving up on the legal battle now ends that standoff. A swath of women's groups issued statements late Monday praising the Justice Department's decision to drop its appeal.
"After far too long of a delay, science has prevailed," said Sen. Patty Murray (D-WA). "Today's move by the Administration means the safety and effectiveness of Plan B, not politics, will dictate access. Plan B is an essential part of women's basic health care and this letter to the court is a major step in keeping it that way."
The administration could have pushed the legal case all the way to the Supreme Court. Opting not to fight the battle until the end will anger social conservatives who don't want young girls to have easy access to emergency contraception. It also opens up the President to criticism for making a legal decision at odds with his pre-election stance.