Dueling lawsuits could determine the legality of mifepristone
Two federal judges are set to issue rulings soon in dueling cases that could have a huge impact on access to the abortion pill mifepristone.
In Washington state, US Judge Thomas Rice is considering whether to remove federal regulations on mifepristone that make it difficult to access even where abortion is legal. He is also considering issuing an order that would prevent the Food and Drug Administration from taking action to remove the pill from the market or reduce its availability.
In Texas, US Judge Matthew Kacsmaryk is considering ordering the FDA to remove mifepristone from the US market. Medical associations that oppose abortion sued the FDA in November to reverse its approval of the drug, which dates back more than 20 years.
Rice heard arguments Tuesday in Spokane from the FDA and the legal team representing Democratic attorneys general who have filed a lawsuit against the agency. The entire hearing lasted less than an hour.
Kacsmaryk heard arguments in the Texas case earlier this month and said he would issue an order as soon as possible. Kacsmaryk was nominated by former President Donald Trump and Rice was nominated by former President Barack Obama.
“At the time we filed our lawsuit, we were obviously very aware of what was happening in Texas. It’s just the legal world we live in,” Washington State Attorney General Bob Ferguson said. , which is leading the trial to keep mifepristone on the market and expand access to the drug.
The United States is now prepared for the possibility of two federal district courts issuing conflicting abortion pill rulings, potentially adding further confusion to an already complex web of state-by-state regulations on mifepristone.
The cases also raise the prospect that the Supreme Court could ultimately be embroiled in escalating litigation over the most common method of terminating a pregnancy in the United States.
“If we get two diametrically opposed rulings on what the FDA should do, it’s almost certain to go to the U.S. Supreme Court,” wrote Glenn Cohen, a former Department of Justice Civil Division attorney and professor at Harvard Law School, in an email. Cohen signed a brief in the Texas case supporting FDA approval of mifepristone.
Ferguson said the Washington state case asks the judge to expand and protect access to mifepristone, especially in the 17 states and DCs that are parties to the lawsuit. In the case of Texas, medical associations that oppose abortion are asking the judge to remove the abortion pill from the American market throughout the country.
If the Texas judge decides first and orders the FDA to remove mifepristone from the market, the Washington state federal judge could still issue an order that at least preserves access to the 17 states and DC that are party to the trial, Ferguson said.
“The federal judge in Washington will rule on Washington and that would preserve it in Washington state and the plaintiff states, but you would have competing court orders and sometimes that settles on appeal,” Ferguson said.
“You could have a situation where in some states it’s not available and in some states it’s available. All of those things are possible. It depends a lot on how those judges write those decisions, though,” Ferguson said. .
The FDA has restricted mifepristone under a federal oversight program since it approved the pill in 2000, but the agency has gradually relaxed those restrictions over the years. It permanently ended the requirement in January that patients obtain the pill in person, which allowed delivery of mifepristone by post. The FDA also allowed retail pharmacies to begin dispensing the pill for the first time.
But the agency kept some restrictions in place. Patients must sign a form outlining the risks of mifepristone and they must obtain a prescription from a health care provider certified under the federal oversight program. Pharmacies must also be certified under this program to dispense the drug to the patient.
Ferguson and the other 17 attorneys general are asking the Washington state judge to drop those restrictions. States include Arizona, Colorado, Connecticut, Delaware, Illinois, Michigan, Nevada, New Mexico, Oregon, Rhode Island, Vermont, Hawaii, Maine, Maryland, Minnesota, Pennsylvania and Washington State. DC is also a party to the lawsuit.
“This only serves to make mifepristone harder for doctors to prescribe, harder for pharmacies to fill, harder for patients to access, and harder for requesting states and their healthcare providers to dispense. “, the Democratic attorneys general told the judge in their complaint.
Cohen said the Washington state lawsuit raises questions about whether the Biden administration would appeal a decision ordering the FDA to drop restrictions on mifepristone.
The White House may not want to explain why it champions barriers to medical abortion, even though the FDA likely wants to protect its regulator, Cohen said. The Biden administration may not appeal if it loses in Washington state and simply drop remaining restrictions on the abortion pill, he added.
But Ferguson noted that the Biden administration chose to defend the restrictions in court on Tuesday: “It wasn’t like they said Ferguson’s right, we shouldn’t have these restrictions. They fight it, they defend him. So what they would do if we won, I don’t know,” he said.
Rachel Rebouche, an expert in reproductive health law at Temple University, said the cases in Washington state and Texas raise the prospect of Supreme Court involvement. Rebouche signed a brief in the Texas case that defended FDA approval of mifepristone.
If the cases of the Washington and Texas district courts are appealed to the Court of Appeals for the 9th Circuit and 5th Circuit respectively and those circuit courts render conflicting decisions, “then it is paramount issues for the Supreme Court,” Rebouche said.
A slight majority of 9th Circuit judges have been appointed by Democratic presidents, while an overwhelming majority of 5th Circuit judges have been appointed by Republican presidents.
Oregon Attorney General Ellen Rosenblum, who co-led the Washington state lawsuit with Ferguson, said she would have concerns about the case ending up in the Supreme Court after her ruling l year to end Roe. “We don’t particularly want to make a case in the United States Supreme Court,” Rosenblum said.