U.S. District Judge Edward Korman in Brooklyn last week refused to delay enforcement of his month-old decision while the government challenges it, but he said the Justice Department had until Monday to appeal to the 2nd U.S. Circuit Court of Appeals in Manhattan.
The government filed paperwork with the appeals court shortly before the noon deadline, saying it believes the judge overstepped his authority and that the administration will likely prevail in its appeal of the overall decision.
The Center for Reproductive Rights, which filed the underlying lawsuit, said it would answer Monday's legal filing within 10 days. The appeals court will then issue a ruling on whether to delay enforcement of Korman's ruling.
Korman said politics was behind efforts by Secretary of Health and Human Services Kathleen Sebelius to block the unrestricted sale of the Plan B One-Step morning-after pill and its generic competitors.
Sales of the morning-after pill had previously been limited to those who were at least 17. The FDA announced earlier this month that the contraception could be sold without a prescription to those 15 and older, a decision Korman said merely sugarcoated the appeal of his order lifting the age restriction.
If the government fails, it would clear the way for over-the-counter sales of the pill to younger girls.
The government warned that "substantial market confusion" could result if Korman's ruling was enforced while appeals are pending. The judge dismissed the reasoning as a "silly argument."
Korman ordered levonorgestrel-based emergency contraceptives be made available without a prescription, over-the-counter and without point-of-sale or age restrictions.
The judge said he ruled against the government "because the secretary's action was politically motivated, scientifically unjustified and contrary to agency precedent" and because there was no basis to deny the request to make the drugs widely available.
In court papers, Reproductive Rights attorneys have said that every day the ruling is not enforced is "life-altering" to some women.