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From Health Law Daily, May 10, 2013

Court denies HHS request for stay pending Plan B appeal

By Michelle L. Oxman, JD, LLM

The judge who ordered HHS to grant a citizen petition to make levonorgestrel-based emergency contraception available over the counter to all women regardless of age, has ruled that HHS should not be granted a stay pending appeal (Tummino v Hamburg, No. 12-CV-763 (ERK)(VVP), May 10, 2013). A stay pending appeal is to be granted when the party seeking the stay will suffer irreparable injury without a stay and has a substantial possibility of success on the merits, and the stay is in the public interest. He reasoned that HHS’ appeal is “frivolous and is taken for the purpose of delay.”

The court reiterated its finding that the Secretary’s action overruling the determination of the FDA that the pill could safely be sold to any woman of reproductive age without a prescription was politically motivated, without scientific basis, and inconsistent with the agency’s standard procedure. It also noted that the HHS did not suggest that there was a reasonable possibility that the finding would be overturned on appeal.

Nevertheless, as a courtesy to the Court of Appeals, the district court granted a stay until the appeals court could consider the government’s motion. However, the ruling was expressly conditioned upon the government’s filing its motion for a stay by noon on Monday, May 13, 2013.

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