DOJ asks judge to clarify legality of abortion pill mifepristone after dueling court rulings


In this 2018 photo, mifepristone and misoprostol pills are provided at a Carafem clinic for medication abortions in Skokie, Illinois.

Erin Hooley | Tribune News Service | Getty Images

The Biden administration on Monday asked a federal judge to clarify how it should respond to his order to keep the abortion pill mifepristone on the market in more than a dozen states, in case another judge’s conflicting ruling to suspend the Food and Drug Administration’s approval of the medication goes into effect later this week.

U.S. District Judge Thomas Rice of the U.S. Eastern District of Washington on Friday barred the FDA from “altering the status quo and rights as it relates to the availability of mifepristone” in the 17 states and the District of Columbia that sued to keep the medication on the market there.

Rice’s decision came just 20 minutes after U.S. District Judge Matthew Kacsmaryk of the U.S. Northern District of Texas suspended the FDA’s approval of mifepristone nationwide. The Justice Department on Monday asked the 5th Circuit Court of Appeals to block Kacsmaryk’s decision from taking effect as litigation plays out. The government’s lawyers indicated they may ask the Supreme Court to get involved.

The Justice Department asked Rice to clarify its obligations on the legality of mifepristone by Friday. Kacsmaryk’s decision goes into effect at midnight CT on Saturday if the 5th Circuit doesn’t block the order out of Texas.

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“If the Texas district court’s order takes effect, the order would — of its own force and without any further action by FDA — stay the effectiveness of FDA’s prior approvals of mifepristone nationwide,” the Justice Department lawyers told Rice in a court filing.

“The result of that order appears to be in significant tension with this Court’s order prohibiting FDA from ‘altering the status quo and rights as it relates to the availability of Mifepristone’ in Plaintiff States,” the DOJ lawyers said.

Rice’s ruling applies to Arizona, Colorado, Connecticut, Delaware, Illinois, Michigan, Nevada, New Mexico, Oregon, Rhode Island, Vermont, Hawaii, Maine, Maryland, Minnesota, Pennsylvania, Washington state and D.C.

In a statement Friday, the Democratic attorneys general who filed the lawsuit in Washington state said Rice’s decision “will safeguard access to mifepristone for millions of Americans.” But they also said “there are still unknown elements and effects” of the dueling rulings out of Washington state and Texas.

Democratic lawmakers such as Sen. Ron Wyden of Oregon have said Kacsmaryk’s ruling has no basis in law and called on the FDA to simply ignore it.

Asked by CNN on Sunday whether he would direct the FDA to ignore the judge’s order, U.S. Health and Human Services Secretary Xavier Becerra said, “Everything is on the table.”



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