DOJ asks judge to make clear court rulings

The Biden administration on Monday asked a federal judge to make clear the way it should reply to his order to maintain the abortion pill mifepristone available on the market in greater than a dozen states, in case one other 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 establishment and rights because it pertains to the provision of mifepristone” within the 17 states and the District of Columbia that sued to maintain the medication available on the market there.

Rice’s decision got here 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 fifth Circuit Court of Appeals to dam Kacsmaryk’s decision from taking effect as litigation plays out. The federal government’s lawyers indicated they could ask the Supreme Court to get entangled.

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

“If the Texas district court’s order takes effect, the order would — of its own force and with none further motion by FDA — stay the effectiveness of FDA’s prior approvals of mifepristone nationwide,” the Justice Department lawyers told Rice in a court filing.

“The results of that order appears to be in significant tension with this Court’s order prohibiting FDA from ‘altering the establishment and rights because it pertains to the provision of Mifepristone’ in Plaintiff States,” the DOJ lawyers said.

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

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

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

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