WASHINGTON — The Biden administration asked a federal appeals court to suspend a ruling by a conservative U.S. judge in Texas that would block access nationwide to a key drug used in medication abortions — even as it sought clarity on a conflicting order in Washington state.
Lawyers for the government argued in their Texas filing on Monday that the “extraordinary and unprecedented” ruling upends the status quo and that the anti-abortion-rights group behind the lawsuit had no authority to challenge federal approval of the drug because the doctors they represent don’t prescribe it to their patients.
U.S. District Judge Matthew Kacsmaryk in Amarillo on Friday temporarily reversed the U.S. Food and Drug Administration’s decades-old approval of mifepristone, siding with those who say the government failed to take into account health concerns about the drug and that its green light was politically motivated. His ruling is set to go into effect on Friday.
In its filing, the Biden administration asked the 5th U.S. Circuit Court of Appeals, which hears appeals of rulings by Texas federal district courts, to issue an emergency order by Thursday at noon that would block Kacsmaryk’s ruling while the government pursues a full appeal.
But Kacsmaryk’s order was followed almost immediately by a contradictory one from a federal judge in Yakima, Washington, who told the government to preserve access to the pill.
Dueling judges and 2024
The dueling orders, respectively from judges appointed by Republican and Democratic presidents, are sure to further elevate abortion access as a potent political issue heading into the the 2024 U.S. elections. Medication abortion has become the most common method in the country as states grapple with how to legislate reproductive rights after the U.S. Supreme Court in June overturned Roe v. Wade, which guaranteed the right to an abortion.
“If allowed to take effect, the court’s order would thwart FDA’s scientific judgment and severely harm women, particularly those for whom mifepristone is a medical or practical necessity,” the government argued in its Texas filing. “This harm would be felt throughout the country, given that mifepristone has lawful uses in every state.”
Should the appeals court allow the ruling to go into effect, the government could turn to the Supreme Court for emergency relief.
In Yakima, the Justice Department asked U.S. District Judge Thomas O. Rice to clarify how the government can comply with both orders, should the Texas ruling go into effect.
‘Significant tension’
“The result of that order appears to be in significant tension with this court’s order,” the government said in a filing. “The court did not address the interaction between the two orders, presumably because they were issued less than 20 minutes apart.”
Kacsmaryk was appointed to the bench by former President Donald Trump, while Rice was named by former President Barack Obama.
The government’s motion to block the Texas order doesn’t mention the Washington case, but focuses instead on claims that the group behind the lawsuit shouldn’t have been able to bring the case in the first place. The plaintiffs waited too long to challenge the 2000 approval of the drug, and their suit fails to provide sufficient evidence that mifepristone is unsafe, according to the filing.
The government also argues that ending FDA approval of mifepristone “will irreparably harm patients, healthcare systems, and businesses” across the country.
The appellate case is Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, 23-10362, 5th U.S. Circuit Court of Appeals. The other case is Washington v. FDA, 23-cv-03026, U.S. District Court, Eastern District of Washington (Yakima).
