By Erwin Chemerinsky
Dean and Distinguished Professor of Law, University of California, Irvine, School of Law

Amidst the flurry of activity in the first 100 days of the Obama administration, one overdue change is not
getting nearly the attention it deserves: science is returning to government. In ways large and small, the Bush
administration let religion and business interests cause government to ignore scientific reality. President Bush
even said that he wasn’t sure about evolution, that it was just a theory. President Bush‚s doubt over evolution set
a tone for an administration that time and again rejected the advice of scientists.

Three recent changes illustrate the new era in Washington. One change involves the availability of the so-called
“morning after pill.” Actually, it involves two pills, marketed under the label “Plan B,” that if taken soon after sexual intercourse will prevent pregnancy. It works most effectively if taken within 24 hours after sex, but it will work so long as the woman takes it within 72 hours after intercourse. After that, the drug is useless so prompt access to it is imperative.


Panels of doctors and scientists advised the Food and Drug Administration to make it available over the counter, without a prescription. It has no serious side effects, only mild ones like nausea and abdominal pain in some users. The World Health Organization urged that it be made available without a prescription and virtually all major industrialized nations have done so.

Numerous major medical organizations urged the Food and Drug Administration to follow course. Women who have intercourse that risks pregnancy, whether because of failure to use contraceptives or contraceptive failure, need immediate access. Requiring a doctor’s visit could mean delays that keep the drugs from working. But the Bush
administration repeatedly refused to allow access without a prescription. Religious groups who believe that life begins at conception see the morning after pill as a form of abortion and lobbied hard for the Bush administration to limit its availability.

Finally in 2006, the Senate refused to approve the Bush administration’s nominee for Food and Drug Commissioner until there was a promise that the drug would be available without a prescription. But even then the FDA approved this only for adult women over age 18, even though it is equally safe and effective for younger women. The drug was to be stored behind the counter and available to those under 18 only with a doctor’s prescription.

In March, a federal judge in New York ordered the FDA to make the drug available without a prescription to 17-year-olds. The judge found that the FDA’s decision was unreasonable in that it ignored medical and scientific evidence. It is likely that the Obama administration will finally follow the recommendation of doctors and medical groups and make this an over the counter drug for all. The reality is that it is far safer than an abortion or a pregnancy.

A second important change concerns the use of embryonic stem cells for research. Stem cells ultimately develop into all of the organs and systems of the body. Stem cell research holds the promise of providing a cure to countless serious conditions ranging from Parkinson‚s disease, to diabetes, to Alzheimer’s, to certain forms of cancer, to those paralyzed from accidents or diseases.


Embryonic stem cells are gathered from discarded fertilized embryos. During in-vitro fertilization procedures, a number of egg cells are stimulated and harvested from the woman. These are then fertilized, but only a few of them are implanted. The rest are discarded. Instead of throwing them away, they can be used to gather stem cells. The Bush administration vehemently opposed the use of embryonic stem cells for research. Religious groups believing that embryos are human lives effectively controlled decision-making and caused the enactment of executive orders preventing those receiving federal money from engaging in such research. Even though the embryos used for stem cell research would otherwise be destroyed and never implanted, the Bush administration refused to allow their use in research.

The Bush administration restricted use of embryonic stem cells to strains already existing in labs. But these were limited in number and often contaminated. Because of the importance of federal dollars in medical research, stem cell research was tremendously limited. President Obama has repealed the Bush executive orders and the ban on such research. The United States is significantly behind other nations in such research, but it now is likely to expand enormously.

One final example of the return of science to the federal government concerns the environment. President Bush expressed doubts about whether greenhouse gas emissions increase global warming long after science had incontrovertibly demonstrated this. The Bush administration refused to participate in the international convention that led to the Kyoto accords and an effort to reduce greenhouse gas emissions.

The Bush Environmental Protection Agency refused to promulgate any regulations to deal with carbon dioxide emissions that cause global warming. In 2007, the United States Supreme Court ruled that the Environmental Protection Agency was required by law to promulgate rules to deal with the problem. Despite this decision, nothing meaningful occurred during the Bush presidency. The Bush Environmental Protection Agency said that it needed further time to study the effects of greenhouse gases.


Unlike its opposition to access to the morning after pill or embryonic stem cell research, the refusal to deal with global warming was not based on pressure from religious conservatives. Rather, businesses, such as utilities and auto makers, successfully lobbied the Bush administration to avoid regulation.

But the Obama administration has quickly changed course. In March 2009, the Environmental Protection Agency found that greenhouse gas emissions, such as carbon dioxide and methane, endanger the health and welfare of the population. Also in March, the E.P.A. proposed a greenhouse gas emissions registry, which would require that industries keep track of and report how much pollution they were emitting. This would apply to many different industries including oil refineries, paper and pulp manufacturers, and utilities. Such monitoring is an essential step to controlling emissions that are increasing global warming and risk environmental devastation.

These diverse examples involving women’s health, scientific research, and environmental protection are united by a common theme: all involve the government clearly following the advice of scientists. For eight years, in these and other examples, the government’s choices were based on pressure from religious and business groups and led to the disregard of science. These recent developments show that like in so many areas, it is a new era in Washington.