Court ruling doesn’t affect 17 states

A U.S. district judge in Washington state on Thursday said access to the abortion pill mifepristone will not be affected by a federal appeals court ruling that imposed restrictions on the medication this week. 

Judge Thomas Rice of the state’s U.S. Eastern District last Friday ordered the Food and Drug Administration to preserve access to mifepristone in 17 states and the District of Columbia which sued to guard the drug in those jurisdictions.

Rice reiterated in a court order on Thursday that the FDA cannot roll back access to the drug, despite a choice by the U.S. fifth Circuit Court of Appeals this week that imposed restrictions on how the medication is distributed and utilized by patients. 

“No judge in Texas or the fifth Circuit gets to override what a federal judge in Washington state has decided,” Washington state Attorney General Bob Ferguson told CNBC earlier Thursday. Ferguson led the lawsuit to preserve access within the 17 states and the district.

Rice’s Thursday order underscores the messy legal landscape that has emerged following dueling court decisions on the drug’s legal status. The U.S. Supreme Court appears poised to make your mind up on the long run of mifepristone — and potentially soon.

Rice’s order applies to Arizona, Colorado, Connecticut, Delaware, Illinois, Michigan, Nevada, Latest Mexico, Oregon, Rhode Island, Vermont, Hawaii, Maine, Maryland, Minnesota, Pennsylvania, Washington and the District of Columbia.

Rice’s order keeps the FDA’s current regulatory framework in place in those jurisdictions. This includes mail delivery of the abortion pill, the flexibility of retail pharmacies to dispense the medication in the event that they are certified to accomplish that, and the administration of mifepristone as much as the tenth week of pregnancy.

“We have now a ruling that is crystal clear, and our full expectation is that the FDA will honor it,” Ferguson said earlier Thursday.

Rice’s decision last Friday got here just 20 minutes after U.S. District Judge Matthew Kacsmaryk of the U.S. Northern District of Texas unilaterally suspended the FDA’s greater than two-decade-old approval of mifepristone and all subsequent regulatory actions the agency has taken since then.

The Department of Justice appealed Kacsmaryk’s decision to the fifth Circuit Court of Appeals on Monday.

A 3-judge panel voted 2-1 on Wednesday to dam Kacsmaryk’s try to suspend the FDA’s approval of mifepristone. Nevertheless it also imposed tougher restrictions on the drug that limit access.

Judges Kurt Engelhardt and Andrew Oldham, who were appointed by former president Donald Trump, voted to temporarily block mail delivery of the abortion pill and reimpose doctor visits to receive the drug. The choice also shortened the time-frame by which mifepristone will be administered to as much as the seventh week of pregnancy. The fifth Circuit will hear oral arguments within the case on the earliest available date.

The DOJ asked Rice earlier this week to make clear by Friday what the federal government’s legal obligations are under his order since it sees “significant” tension with Kacsmaryk’s decision. Rice said on Thursday that Kacsmaryk’s order and the fifth Circuit ruling don’t have any bearing on access to mifepristone within the 17 states and D.C. 

“I do not see a world by which the FDA decides for Washington and the states that joined our coalition that they will roll back access in the way in which the fifth Circuit imagines,” Ferguson said earlier Thursday.

The Biden administration is appealing the fifth Circuit’s decision to Supreme Court. U.S. Attorney General Merrick Garland on Thursday said the DOJ “strongly disagrees” with the appeals court and can seek emergency relief from the high court to “protect Americans’ access to protected and effective reproductive care.”

Glenn Cohen, a former attorney with the DOJ, said the FDA has an excellent stronger argument for the court to intervene after Rice maintained his order preserving access in response to the federal government’s request for clarification.

“The necessity to go to the Supreme Court within the interim becomes more compelling — and FDA has a stronger argument for Court review since two courts are telling it to do opposite things,” Cohen, an authority on health law at Harvard Law School, told CNBC in an email prior to Rice’s clarification on Thursday.