"Why did they start with abortion clinics? Because it begins with the letter 'A'?" asked Judge Richard Posner.

At the oral argument in the 7th Circuit Court of Appeals yesterday.

The subject was Wisconsin's new law requiring doctors at abortion clinics to have access to hospitals within 30 miles, which has been temporarily blocked by the lower court.

At times appearing exasperated, Posner repeatedly interrupted [Wisconsin assistant attorney general Daniel] Lennington, asking why lawmakers — if it's true they saw the law as primarily a public health measure and not an anti-abortion bill — focused on abortion clinics and not other outpatient clinics, such as those performing laparoscopic surgeries....

Lennington professed to have no idea why. One suspects that the reason is: Because it's only abortion that we disapprove of and therefore want to encumber. If that's the real answer, Lennington wouldn't want to say it, because it lays the groundwork for finding the law to be the kind of undue burden that violates privacy rights.

Posner also cited figures that just .3 percent of abortions have medical complications. Asked if there were records of women dying in Wisconsin after abortions, Lennington said he didn't know.

At that point, Posner said about the law, "It doesn't sound reasonable. It sounds irrational."

Lennington didn't even know if there were records?! If you actually want to get away with imposing these burdens, you ought to build a foundation for showing that there are strong medical reasons for the new requirement. But then it would be less obvious that the law expresses opposition to abortion. I'm going to presume that the legislature wanted to flaunt its opposition to abortion — for political reasons — and the law is more of a gesture than a genuine health provision that can and should be upheld.

Part of the plan, perhaps, is a tempting invitation to the judges to strike it down. Can a judge resist? If not, the social conservatives will bray about "activist judges," and they'll overplay their hand, in all likelihood, and we'll be back in the throes of the "war on women" just in time for the next presidential election, which, of course, will be won by Hillary Clinton, who — through judicial appointments and federal statutory law and health-care regulations — will save The Right To Choose.

"Democrats, who filibustered their own share of Republican judicial nominees before they took control of the Senate..."

"... have said that what the minority party has done is to effectively rewrite the law by requiring a 60-vote supermajority threshold for high-level presidential appointments. Once rare, filibusters of high-level nominees are now routine."

Harry Reid moves to end the filibuster for judicial nominees. [UPDATE: They did it!]

Short term: What a flood of new judges we will have! Long term: The American people will see what sort of judges Obama and the Senate majority installs, the GOP will highlight their "left-wing activism" (or whatever it might be called), the American people will respond (perhaps becoming alarmed), a Republican President will (sooner or later) be elected, he or she will feel fully empowered to pick excitingly conservative judges (the Bork kind, not the bland kind), Democrats will rail against their "right-wing activism," the American people will respond (taking sides between the conservative and liberal activist judges and the role of the judiciary in our democracy), and who knows what will happen in the next presidential election and the one after that and after that?

Think about how that long-term game will play out and answer this poll:

Long term, what will be the effect on the American political mind?
	Aversion to right-wing activism will lead to a preference for more liberal judges.
	Aversion to left-wing activism will lead to a preference for more conservative judges.
	Aversion to judicial activism will lead to a preference for blander, more restrained judges.
	Enthusiasm for exciting judges will lead to a preference for better, more interesting judges.
	Enthusiasm for exciting liberal judges will lead to a preference for more of them.
	Enthusiasm for exciting conservative judges will lead to a preference for more of them.
pollcode.com free polls

"Is It Time for Off-the-Shelf Birth-Control Pills?"

A NYT "news analysis" written by its environment and health reporter Elisabeth Rosenthal plays off the news that "a federal judge recently ordered the Food and Drug Administration to make the morning-after pill available to women of all ages without a prescription." We're told that was "a political embarrassment for the Obama administration."

Was it a political embarrassment? I thought it was exactly what is helpful to the Obama administration. Instead of being responsible for cheapening contraception and perhaps risking women's health in the process, Obama et al. can say the judge made it happen. It's great political cover.

But that controversy may look like a tempest in a teapot compared with a broader and no less heated discussion that is roiling the medical community: should birth-control pills of any type require a doctor’s prescription? Or should they be available, like Tylenol, on pharmacy shelves?

Last December the American College of Obstetricians and Gynecologists released an official position paper concluding that the time had come for birth-control pills to be sold over the counter. It was the first time the group had endorsed such sales, concluding that scientific evidence suggested that the practice was safe and calling it “a potential way to improve contraceptive access and use, and possibly decrease the unintended pregnancy rate.”

After having won reelection by demagoguing contraception, Obama is mired in the horrible — how horrible? — problem of implementing the Affordable Care Act, with its promise of contraception coverage. What would be more helpful than birth control pills sold over the counter like Tylenol? Oh, it's safe enough say the obstetricians and gynecologists. What are their economic interests here? Do they want a big new stream of patients coming in for simple prescriptions? Perhaps they fear the piddling reimbursements they'll get for this work. If only the federal courts would take the heat for the decision to block access to doctors for routine birth control care. The federal courts could make it seem like it's about — yay! — Women's Rights and not — boo! — cost cutting.

But the NYT analysis is not about the economics of Obamacare and things that might disturb liberals. It's about the Warriors on Women, the religionists and pro-lifers. They've been questioning the safety of the morning-after pill, which, unlike regular birth control pills, entails the abortion issue. Making righties seems like the opponents of over-the-counter birth control pills is a great distraction from the cost-cutting in the implementation of Obamacare. If righties are the opponents, opposition — to lefties — is toxic.

That legal dispute [over morning after pills] has highlighted the Obama administration’s hair splitting over the sensitive issue of contraceptive policy. Even though F.D.A. doctors said in 2011 that studies showed that it was safe to sell Plan B, the most common emergency contraceptive, to adolescents over the counter, the administration refused to approve the practice. (It was already available to older women.) That set the stage for the ruling earlier this month by Judge Edward R. Korman of the Eastern District of New York, who called the administration’s action “politically motivated and scientifically unjustified” — essentially an attempt to appease religious conservatives.

Surely, the Obama people are privately thanking Judge Korman. Opposition to the need to go to the doctor for birth control is religious conservatism. The judge says it's women's rights!

Politics aside, there are procedural hurdles to clear before packs of birth-control pills can be sold without prescription. First of all, a drug maker would most likely have to apply to the F.D.A. to make the switch....

Most likely. Unless the judges step up.