Boxes of mifepristone, the primary pill given in a medical abortion, are prepared for patients at Women’s Reproductive Clinic of Recent Mexico in Santa Teresa, U.S., January 13, 2023.
Evelyn Hockstein | Reuters
The U.S. Department of Justice on Monday asked a federal appeals court to maintain the abortion pill mifepristone on the U.S. market as litigation plays out, and indicated that it could ask the Supreme Court to intervene within the case, days after a federal judge suspended the Food and Drug Administration’s approval of the medication nationwide.
The DOJ asked the U.S. fifth Circuit Court of Appeals to dam U.S. Judge Matthew Kacsmaryk’s unprecedented decision by noon Thursday “to enable the federal government to hunt relief within the Supreme Court if obligatory.” Kacsmaryk’s suspension of the FDA’s approval of mifepristone is ready to take effect 12 a.m. Saturday CT.
The Biden administration’s lawyers said in a filing to the fifth Circuit that “there isn’t a basis for extraordinary nationwide relief that may upend a decades-long established order.”
“If allowed to take effect, that order will irreparably harm patients, healthcare systems, and businesses,” the Justice Department lawyers wrote in a court filing.
Danco Laboratories, the distributor of mifepristone, also asked the fifth Circuit to dam Kacsmaryk’s decision from taking effect, calling it an “unprecedented judicial assault on a careful regulatory process that has served the general public for a long time.”
“If this Court is inclined to disclaim the emergency or administrative stay, Danco also requests an administrative stay of not less than fourteen days to permit Danco the chance to hunt emergency relief from the Supreme Court,” the corporate’s attorney Jessica Ellsworth wrote in a court filing.
When asked whether Danco will stop distributing mifepristone if Kacsmaryk’s decision takes effect this Saturday, Ellsworth said the corporate will seek the advice of with the FDA about find out how to proceed.
“I believe there might be some difficult questions that Danco needs to handle and a few conversations that it should have to have with FDA around what happens next,” Ellsworth said.
Used together with one other drug misoprostol, mifepristone is probably the most common method within the U.S. to terminate a pregnancy, accounting for about half of all abortions.
In a separate ruling Friday, one other federal judge ordered the FDA to maintain mifepristone in the marketplace within the 17 states and D.C. that sued to guard access to the medication. The ruling got here from Judge Thomas Owen Rice of the U.S. District Court for the Eastern District of Washington.
Democratic lawmakers comparable to Sen. Ron Wyden of Oregon have dismissed Kacsmaryk’s decision as having no legal basis and are calling on the FDA to easily ignore it.
“There is no such thing as a way this decision has a basis in law,” Wyden said in an announcement last Friday. “It’s as a substitute rooted in conservatives’ dangerous and undemocratic takeover of our country’s institutions. Irrespective of what happens in seven days, I think the Food and Drug Administration has the authority to disregard this ruling, which is why I’m again calling on President Biden and the FDA to do exactly that.”
U.S. Health Secretary Xavier Becerra said he wouldn’t engage in speculation when asked by CNN whether he would direct the FDA to disregard Kacsmaryk’s decision if his ruling stands.
Becerra said “every thing is on the table” to preserve access to mifepristone.
Clarification: Judge Matthew Kacsmaryk’s suspension of the FDA’s mifepristone approval will go into effect 12 a.m. Saturday CT. An earlier version misstated the deadline.