“An Intellectually Dishonest Argument”

The Obama administration’s inexplicable decision to defend its arbitrary emergency contraception restrictions came up again before Edward Korman.   This went about as well as it deserved to:

This morning, Korman repeatedly slammed his hand down on the table for emphasis, interrupting the government counsel’s every other sentence with assertions like, “You’re just playing games here,” “You’re making an intellectually dishonest argument,” “You’re basically lying,” “This whole thing is a charade,” “I’m entitled to say this is a lot of nonsense, am I not?” and “Contrary to the baloney you were giving me …” He also accused the administration of hypocrisy for opposing voter ID laws but being engaged in the “suppression of the rights of women” with the ID requirement for the drug.

Frank Amanat, arguing on behalf of the administration, said that the court had overreached by ordering a particular policy rather than remanding to the agency for further review. But he could not say, in response to repeated demands from Korman, that the result would be any different if it were returned to the agency. Nor did he specify any harm that would come from making the drug more available.

“The irony is that I would be allowing what the FDA wanted. This has got to be one of the most unusual administrative law cases I have ever seen,” Korman said, adding, “I would have thought that on the day I handed down my decision, they would be drinking champagne at the FDA.”