DOJ Asks Appeals Court To Keep Abortion Pill Mifepristone On The Market

Topline

The Department of Justice filed an emergency stay Monday asking a federal appeals court to block a Trump-appointed judge’s ruling last week that could restrict access nationwide to the abortion pill mifepristone—a controversial ruling that has been celebrated by anti-abortion groups but heavily criticized by the Biden Administration amid concerns it could restrict abortion access for tens of millions of women.

The Department of Justice is seeking a stay on a federal judge’s ruling last week that could … [+] restrict women’s access to the abortion drug mifepristone.

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Key Facts

The DOJ’s request, filed with the 5th Circuit Court of Appeals, asks for an administrative stay on U.S. District Judge Matthew Kacsmaryk’s order last week to provide more time as the case goes through the appeals process, as well as a long-term stay on the order, pending appeal.

Kacsmaryk, a Trump appointee, took the unusual step on Friday of suspending the Food and Drug Administration’s approval of the drug—which had been in effect for 23 years—but put the order on a seven-day hold to give the Biden Administration time to appeal.

President Joe Biden pledged on Saturday to fight the ruling, arguing in a statement it would rescind “basic freedoms from women” and put their health at risk.

In a statement on Monday, the DOJ warned Kacsmaryk’s order, if it takes effect, would “thwart FDA’s scientific judgment and severely harm women” nationwide.

Kacsmaryk’s ruling stems from a lawsuit filed by anti-abortion rights advocates against the FDA and the Department of Health and Human Services in November, seeking to overturn the FDA’s approval of mifepristone and misoprostol, another abortion pill commonly used in combination with mifepristone.

Plaintiffs claim the FDA lacked the authority to approve the pills because they were approved in an accelerated process reserved for “serious or life-threatening illnesses,” though the DOJ claims those plaintiffs lack legal standing to challenge the FDA’s approval because they do not take the pill or prescribe it.

Chief Critic

Multiple Biden Administration officials have slammed Kacsmaryk’s decision: Attorney General Merrick Garland argued it “overturns the FDA’s expert judgment” that the abortion pill is safe and effective, while Department of Health and Human Services Secretary Xavier Becerra called the ruling “regressive” and said it will have a “disastrous impact on women and families across America.” Becerra also warned in an CNN interview Sunday the decision could have wide-ranging implications, including on the availability of other FDA-approved drugs or vaccines, saying the decision turned “upside down the entire FDA approval process.”

Contra

Abortion opponents and several major Republicans have lauded Kacsmaryk’s ruling. Following the ruling, Vice President Mike Pence said, “Life won today,” while Sen. Cindy Hyde-Smith (R-Miss.) called it a “victory for pregnant mothers & their unborn children.”

What We Don’t Know

How a contradictory ruling by Washington-state-based federal Judge Thomas Rice issued just minutes after Kacsmaryk’s ruling will play out. Rice on Friday barred the FDA from making any changes “altering the status quo and rights” of mifepristone’s availability. His ruling, unlike the one from Kacsmaryk, only applies to 17 states and Washington, D.C., which brought the case.

Big Number

40 million. That’s how many U.S. women would be affected by Kacsmaryk’s ruling, if it goes into effect, according to a February study by the abortion rights group NARAL Pro-Choice America.

Key Background

Abortion rights have been cast into doubt since the Supreme Court’s monumental decision last June to overturn Roe v. Wade, leaving women’s access to abortions up to lawmakers in individual states, and creating a divide in abortion access across the country. Many states have since banned the procedure or enacted restrictions on abortion pills, making drugs like mifepristone—which were common even before Roe v. Wade was overturned—a key option for women who live in states with heavy abortion restrictions. But Kacsmaryk’s order applies to states without restrictions on abortion pills, potentially impacting abortion access nationwide.