On Friday, April 7, Texas federal Judge Matthew Kacsmaryk issued a ruling nullifying the FDA’s approval of one of the two major abortion pills, FDA Approval Of Abortion Pill Mifepristone Is Revoked By Federal Judge:
There were two important and seemingly (but not actually) conflicting federal district court rulings regarding the abortion pill Mifepristone, which obtained FDA approval 23 years ago. In a Texas case, the court ruled that the FDA approval was improper and revoked, with his ruling stayed for 7 days to give time for an emergency appeal. In Washington State, a district court judge prohibited the FDA from changing its protocols as to Mifepristone, but limited his ruling to 17 blue state plaintiffs, and in any event prohibiting the FDA from taking action does not preempt the revocation of approval by the Texas federal court….I don’t see the rulings as inconsistent, though some disagree. The Washington State order prohibits the FDA from taking any steps with regard to the drug, but the Texas ruling revokes approval ab initio, so there’s nothing for the FDA to do.
There has been a lot of criticism of the decision, some of it reasoned, much of it not.
Something interesting has happened. Democrats are coming out with calls to defy the court ruling. Ron Wyden, Democrat Senator from Oregon and Chair of the Senate Finance Committee, says the ruling should be ignored:
This devastating ruling has no basis in law and will ban the most common method of abortion in EVERY single state. President Biden can and must ignore this ruling and keep mifepristone on the market and accessible for every woman in America.
His tune has changed on defying courts:
AOC, the most famous Democrat in the House, says Defy!
“I believe that the Biden administration should ignore this ruling,” Ocasio-Cortez said.The congresswoman said conservative jurists have undermined their legitimacy through the “deeply partisan and unfounded nature” of these rulings.
Ocasio-Cortez said a court’s decision “relies on enforcement, and it is up to the Biden administration to enforce — to choose whether or not to enforce such a ruling.”
Pushed by Cooper on whether the lawmaker wanted a system where the federal government ignores the judiciary, Ocasio-Cortez said the FDA and the Biden administration will consider the merits of several legal challenges and decide “how exactly we mapped this out.”
But the congresswoman said a Republican “power grab” in the judiciary has created a situation in which the legitimacy of their rulings is in doubt.
Asked again if she thinks the Biden administration should flatly ignore the ruling, Ocasio-Cortez said the presidency and Congress can and should act as a check on the judiciary, but she did not outline a specific course of action as it pertains to the Biden administration’s tack on the abortion ruling.
In Massachusetts, they won’t obey a “Trump-appointed Judge” if they don’t like his ruling.
I’m not sure how defiance would work as to medication not approved by the FDA. It would, among other things, raise enormous liability risk for everyone in the supply chain, from manufacturer, to pharmacy, to health care provider. It also could open up the possibility of regulatory or criminal exposure.
I don’t expect this ruling to go into effect in a few days – it’s highly likely that either the 5th Circuit or the Supreme Court will stay the ruling pending the normal appellate process. The ruling upsets a 23-year-old FDA approval for a drug that now is widely used, on an issue that already has resulted in an unprecedented leak of a draft opinion, an assassination attempt againat Justice Kavanaugh, and protests at the homes of conservative Supreme Court Justice. Don’t think that isn’t weighing on them.
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