This story by Jane Norman and Jennifer Shutt appeared on Colorado Newsline on April 13, 2023. We are sharing it in two parts.
The U.S. Justice Department announced Thursday it will ask the Supreme Court on an emergency basis to keep access to the abortion medication mifepristone exactly as it is now, amid the appeals process in a much-watched case out of Texas.
Attorney General Merrick Garland said in a statement the department “strongly disagrees” with a decision from the 5th Circuit Court of Appeals in New Orleans that only partly granted the federal government’s request to place on hold the ruling from a district court judge.
The 5th Circuit’s partial stay, issued late Wednesday night, would keep the U.S. Food and Drug Administration’s 2000 approval of mifepristone in place, reversing the district court while the case is on appeal.
The three-judge panel, however, said it would let stand the part of the ruling that reverts prescribing and use of mifepristone to pre-2016 instructions.
“The Justice Department strongly disagrees with the Fifth Circuit’s decision in Alliance for Hippocratic Medicine v. FDA to deny in part our request for a stay pending appeal,” Garland said.
“We will be seeking emergency relief from the Supreme Court to defend the FDA’s scientific judgment and protect Americans’ access to safe and effective reproductive care,” Garland added.
The appeals court in New Orleans partly blocked the judge’s order that would have overturned federal approval of the abortion pill — which means the pill remains available across the nation for now.
But the 5th Circuit also let part of the Texas judge’s order stand. The effect of the appeals court decision appears to be that while the case is on appeal, the abortion medication mifepristone is approved for use in pregnancies up to seven weeks, not 10 weeks, and it can’t be dispensed through the mail.
The Department of Justice appeal to the Supreme Court would seek to continue to allow mail delivery and the 10-week limit for pregnancies while the lawsuit goes on.
U.S. District Court Judge Matthew Kacsmaryk, in the Northern District of Texas, had ruled Friday, April 7, to overturn the U.S. Food and Drug Administration’s 2000 approval of the abortion drug mifepristone.
Kacsmaryk put a seven-day delay in his ruling and the U.S. Justice Department filed an appeal to the 5th Circuit Court of Appeals, asking the court to put the Texas ruling on hold. The manufacturer, Danco Laboratories, also appealed.
In the 42-page ruling in the 5th Circuit, a panel of three judges wrote, “At this preliminary stage, and based on our necessarily abbreviated review, it appears that the statute of limitations bars plaintiffs’ challenges to the Food and Drug Administration’s approval of mifepristone in 2000.” They granted a stay, or pause, of that part of the Texas decision.
But they said the arguments of anti-abortion groups are more likely to succeed in connection with the actions taken by the FDA in 2016 and later to make the abortion pill more widely available, including through the mail, and allow it to be used beyond seven weeks of pregnancy.
The 2016 changes by the FDA increased maximum gestational age to 70 days when the pill could be used; reduced required in-person office visits to one; allowed non-doctors to prescribe and administer mifepristone; and eliminated reporting of non-fatal adverse events.
In 2021, the FDA announced “enforcement discretion” to allow mifepristone to be dispensed through the mail during the COVID-19 pandemic. Earlier this year the FDA permanently removed the in-person dispensing requirement.
The lawsuit was brought by the anti-abortion Alliance for Hippocratic Medicine and others against the FDA.
Kirsten Moore, director of the Expanding Medication Abortion Access Project, or the EMAA Project, said in a statement the appeals court ruling “shows exactly why courts have no place interfering in health care.”
“This middle of the night ruling, while keeping mifepristone on the market, rolls back years of medical progress by reinstating restrictions that were lifted in 2016 and forcing people to go back to picking up their medications in person, essentially eliminating teleheath access and forcing people to travel, in some cases hundreds of miles, just to receive care,” Moore said.
The three-judge appeals court panel that issued Wednesday night’s order was made up of Judge Catharina Haynes, appointed by former President George W. Bush; Judge Kurt D. Engelhardt, appointed by former President Donald Trump; and Judge Andrew W. Oldham, also appointed by Trump.
Haynes said in a footnote that she concurred in part, including on the grant of an expedited appeal and the denial of the motion to dismiss the case. She said she would have granted a stay of the Texas order “for a brief period of time” and defer the question until oral arguments.
It was not immediately clear how the 5th Circuit ruling would affect — or not affect — a separate ruling from U.S. District Court for the Eastern District of Washington Judge Thomas Rice.
Rice on Friday, just minutes after the Texas order, barred the FDA from changing “the status quo and rights as it relates to the availability of Mifepristone” in the 17 states and District of Columbia that filed a lawsuit about the pharmaceutical in his court.
The U.S. Justice Department has asked Rice to clarify his ruling, saying it “appears to be in significant tension” with the Texas opinion.