The Biden administration has asked the Supreme Court to step in after a federal appeals court walked back just part of the decision to suspend FDA approval of a widely used abortion drug, but not the full request to completely block the ruling.
Attorney General Merrick Garland said in a Thursday statement that the Department of Justice would be turning to the Supreme Court after the 5th U.S. Circuit Court of Appeals in New Orleans issued a ruling late Wednesday night that partially reversed a ruling from U.S. District Judge Matthew Kacsmaryk that had paused FDA approval of mifepristone.
“The Justice Department strongly disagrees with the Fifth Circuit’s decision in Alliance for Hippocratic Medicine vs. FDA to deny in part our request for a stay pending appeal. We will be seeking emergency relief from the Supreme Court to defend the FDA’s scientific judgment and protect Americans’ access to safe and effective reproductive care,” Garland said in a statement.
The announcement came as the issue was likely to go before the high court due to competing rulings from federal judges in Washington and Texas.
According to Wednesday’s ruling from the 5th U.S. Circuit Court, mifepristone, a pill used in up to half of all abortions, cannot be mailed and it can only be used up until the seventh week of pregnancy. Last week, a conflicting ruling from U.S. District Judge Thomas O. Rice ruled the FDA must still allow the drug in 17 Democratic-led states that had brought a lawsuit concerning the chemical abortions.
Judges Kurt Engelhardt and Andrew Oldham, both appointed by former President Donald Trump, favored the restrictions while Judge Catharina Haynes, appointed by former President George W. Bush, opposed regulating the chemical abortion pill.
The appeals court’s restrictions were added because the judges did not believe them to be “critical” because “the nation operated — and mifepristone was administered to millions of women — without them for sixteen years” between the initial approval of the drug in 2000 and the FDA’s changes in 2016 to how mifepristone was obtained
During his explanation of why he voted to suspend approval, Kacsmaryk said that the approval had relied on shoddy studies.
“Simply put, FDA built on its already-suspect 2000 Approval by removing even more restrictions related to chemical abortion drugs that were present during the final phase of the investigation. And it did so by relying on studies that included the very conditions FDA refused to adopt,” he said.
Kacsmaryk’s decision was widely praised by pro-life groups but decried by the Biden administration, who promised to challenge the ruling.
“We are going to continue to fight in the courts, we believe the law is on our side, and we will prevail,” White House Press Secretary Karine Jean-Pierre said of the issue this week.
The suspension of mifepristone followed a suit from the Alliance for Hippocratic Medicine and other pro-life groups who were represented by lawyers with the Alliance Defending Freedom.
“Pregnancy is not an illness, and chemical abortion drugs don’t provide a therapeutic benefit—they can pose serious and life-threatening complications to the mother, in addition to ending a baby’s life. The FDA never had the authority to approve these hazardous drugs and remove important safeguards,” said ADF Senior Counsel Erik Baptist.