Matthew Kacsmaryk, deputy counsel for the First Liberty Institute, answers questions during his nomination hearing by the U.S. Senate Committee on the Judiciary in Washington, D.C., on Dec. 13, 2017, in a still image from video.
Reuters
The antiabortion group at the middle of a legal fight over the abortion pill mifepristone told a U.S. appeals court that it doesn’t have jurisdiction to dam the Texas ruling which suspended the Food and Drug Administration’s approval of the drug.
The Alliance Defending Freedom’s lead attorney, Erik Baptist, argued in a recent filing to the U.S. fifth Circuit Court of Appeals late Tuesday that the court lacks authority to grant the Justice Department’s request to dam the choice. The lawyer for the plaintiffs argued the court doesn’t have jurisdiction because U.S. District Judge Matthew Kacsmaryk didn’t issue an injunction ordering the FDA to withdraw mifepristone.
As an alternative, Kacsmaryk unilaterally suspended the FDA’s Sept. 28, 2000, approval of mifepristone pending further litigation. His decision is about to take effect a 12 a.m. central time on Saturday if the fifth Circuit doesn’t block it. At that time, mifepristone would not be an approved drug within the U.S., which suggests it could actually’t be distributed for abortions.
Baptist made a technical argument that Kacsmaryk’s decision to suspend the approval date can’t be appealed to the fifth Circuit under federal law, in contrast to an injunction or a final court decision. He argued the case should proceed to play out within the U.S. District Court for the Northern District of Texas.
“Accordingly, this Court should dismiss Defendants’ appeal for lack of jurisdiction,” Baptist argued.
The Justice Department, in its response Wednesday, said the Alliance Defending Freedom has cited no case holding that the variety of order issued by Kacsmaryk can’t be appealed. The federal government’s lawyers argued that Kacsmaryk’s decision is such as an injunction. They called on the fifth Circuit to instantly block the judge’s order from going into effect early Saturday.
“The district court presupposed to be acting in a restrained manner; but there’s nothing modest about upending the decades-long establishment by blocking access nationwide to a protected and effective drug,” the Justice Department said. “If allowed to take effect, the court’s order will cause irreparable harm across the country”.
Danco Laboratories, the corporate that distributes mifepristone, said the Alliance Defending Freedom is using a “last-ditch argument” to maintain Kacsmaryk’s order in place. The group’s claims reveal the weaknesses within the judge’s order and in its own arguments against the drug’s approval, Danco argued.
“A district court cannot shield its order from appellate review by utilizing the word ‘stay,'” wrote Danco’s attorney Jessica Ellsworth in a filing to the fifth Circuit on Wednesday. “Nor did the court here attempt to. It understood the order was appealable and gave the parties seven days to hunt emergency relief from this Court.”
The Justice Department and Danco said of their motion to the fifth Circuit on Monday that they may ask the Supreme Court to intervene within the case if mandatory.
The Alliance Defending Freedom sued the FDA within the U.S. Northern District of Texas in November, arguing the agency didn’t use the right process to approve mifepristone in 2000. It also contended the medication is unsafe. Kacsmaryk embraced those claims in his ruling last week.
The FDA, at the least 23 states, a whole lot of members of Congress, leading medical associations, and drug law experts all strongly dispute the group’s claims. They argue that the FDA approved mifepristone using its authority delegated by Congress, and that the evidence overwhelmingly demonstrates the medication is a protected and effective method to terminate an early pregnancy.
“There isn’t a basis in science or fact for plaintiffs’ repeated claims that mifepristone is unsafe when utilized in the way approved by FDA,” Justice Department lawyers wrote of their temporary Wednesday. “Neither is there any basis in administrative law for the district court’s unprecedented overriding of FDA’s considered scientific judgment.”
Along with the Justice Department, nearly half the states within the U.S. have called on the fifth Circuit to dam Kacsmaryk’s ruling, warning the judge’s order threatens abortion even in states which have protected access to the procedure within the wake of the Supreme Court’s decision to overturn Roe v. Wade last summer.
Mifepristone, used together with one other drug called misoprostol, is probably the most common method to terminate a pregnancy within the U.S., accounting for about half of all abortions, based on the Centers for Disease Control and Prevention.
The Alliance Defending Freedom worked with Mississippi lawmakers to draft the law at the middle of Dobbs v. Jackson Women’s Health Organization. That case ultimately resulted within the Supreme Court overturning Roe v. Wade, the 1973 ruling that guaranteed abortion rights nationwide.
The Alliance Defending Freedom represents a gaggle of physicians who oppose abortion called the Alliance for Hippocratic Medicine within the case against the FDA.
