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
Attorneys general for nearly half of U.S. states in a recent court filing warn that a federal judge’s decision to suspend the Food and Drug Administration’s 23-year-old approval of mifepristone across the country “presents devastating risks to tens of millions of individuals,” including those in states where abortion stays legal.
The attorneys general of their filing Monday called on the U.S. fifth Circuit Court of Appeals to maintain mifepristone available on the market as litigation over the legality of the abortion pill plays out.
Judge Matthew Kacsmaryk of the U.S. District Court in Amarillo, Texas, on Friday effectively revoked the FDA approval of mifepristone.
But he put his decision on hold for one week to present the Biden administration time to appeal.
Kacsmaryk’s ruling will take effect at 12 a.m. CT on Saturday if the fifth Circuit doesn’t halt it.
Of their filing Monday, the Democratic attorneys general for 23 states and the District of Columbia condemned Kacsmaryk’s ruling as “legally erroneous” and warned it could undermine the FDA’s approval process.
The attorneys general argued that Kacsmaryk’s order would “eviscerate the sovereign decisions” made by the states to guard access to abortion within the wake of the Supreme Court’s decision last summer to overturn Roe v. Wade, the case that since 1973 had said there was a federal constitutional right to abortion.
Mifepristone, used together with one other drug, misoprostol, is probably the most common approach to terminating a pregnancy within the U.S., accounting for about half of all abortions.
The attorneys general cited that fact of their transient.
“Because medication abortion is probably the most common method used to terminate a pregnancy in the course of the first trimester, curtailing access to this method will end in more abortions happening later in pregnancy, further increasing costs and medical risks,” the attorneys general wrote.
The Department of Justice on Monday asked the fifth Circuit to rule on its request to halt Kacsmaryk’s decision by noon Thursday “to enable the federal government to hunt relief within the Supreme Court if crucial.”
Danco Laboratories, the distributor of mifepristone, also has asked the appeals court to pause Kacsmaryk’s decision for not less than 14 days so the corporate has the chance to “seek emergency relief from the Supreme Court.”
There is important uncertainty about how Kacsmaryk’s decision will affect the legality of mifepristone if his decision just isn’t blocked by the fifth Circuit or the Supreme Court.
Just 20 minutes after Kacsymaryk issued his ruling Friday, one other federal judge, Thomas Rice of the Eastern District of Washington, barred the FDA from “altering the established order and rights because it pertains to the provision of mifepristone” within the District of Columbia and 17 states that had sued to maintain the medication available on the market of their jurisdictions.
The Department of Justice has asked Rice to make clear how the FDA should reply to his ruling if Kacsmaryk’s decision goes into effect, noting that the Washington state ruling appears to be in “significant tension” with the choice by Kacsmaryk.
The DOJ asked Rice to answer that question by Friday.
Some 53% of adults within the U.S. consider medication abortion needs to be legal of their state, while about 22% say it needs to be illegal and 24% are unsure, in response to a poll published by the Pew Research Center on Tuesday. The poll was conducted before Kacsmaryk’s ruling.
Kacsmaryk’s decision doesn’t affect the provision of misoprostol, which the World Health Organization recommends as a standalone abortion drug.
States equivalent to California are stockpiling misoprostol within the event that Kacsmaryk’s decision goes into effect.
Along with the District of Columbia, the states that filed Monday’s transient to the fifth Circuit are Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, Recent Jersey, Recent Mexico, Recent York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and Wisconsin.
