Two federal judges are set to rule on duel cases that might dramatically impact access to the mifepristone abortion pill.
In Washington state, U.S. District Judge Thomas Rice is considering whether to overturn the federal mifepristone law, which restricts access even where abortion is legal. He can be considering whether to issue an order that may prevent the FDA from taking any motion to withdraw the pill from the market or limit its availability.
In Texas, U.S. District Judge Matthew Kacsmaryk is considering whether to order the FDA to withdraw mifepristone from the U.S. market. Medical associations that oppose abortion sued the FDA in November to overturn the drug’s approval, which dates back greater than 20 years.
Rice heard arguments Tuesday in Spokane from the FDA and a legal team representing a coalition of Democratic Attorneys General who filed a lawsuit difficult the agency. The whole interrogation lasted lower than an hour.
Kacsmaryk heard arguments in the Texas case earlier this month and said he would issue an injunction as soon as possible. Kacsmaryk was appointed by former President Donald Trump and Rice was appointed by former President Barack Obama.
“Before we filed the criticism, we were obviously very aware of what was occurring in Texas. That is just the legal world we live in,” said Washington State Attorney General Bob Ferguson, who’s leading a lawsuit to maintain mifepristone on the market and expand access to the drug.
The US is now prepared for the possibility of two federal district court rulings on the abortion pill that conflict with one another, potentially adding further confusion to the state’s already complex web of mifepristone laws.
The cases also raise the prospect that the Supreme Court could eventually be involved in an escalating dispute over the most typical method of abortion in the U.S.
“If we get two diametrically opposed rulings on what the FDA should do, we are going to almost definitely find yourself in the U.S. Supreme Court,” Glenn Cohen, a former Justice Department civil division attorney and professor at Harvard Law School, wrote in an email. Cohen signed a Texas case document confirming the FDA’s approval of mifepristone.
Ferguson said the Washington case requires a judge to expand and protect access to mifepristone, particularly in the 17 states and the District of Columbia which are litigating. In the case of Texas, medical associations that oppose abortion are asking a judge to withdraw the abortion pill from the US market nationwide.
If a judge in Texas rules first and orders the FDA to take mifepristone off the market, a judge in Washington can still issue an order that not less than preserves access in 17 states and DC, Ferguson said.
“A federal judge in Washington will find in Washington what’s going to keep him in Washington state and the plaintiff states,” Ferguson said. “But you’d have competing injunctions, and sometimes that gets resolved on appeal.”
“There may be a situation where this will not be possible in some states and available in others. Each of these items is feasible. But rather a lot is dependent upon how these judges write those rulings,” Ferguson said.
The FDA has placed mifepristone under a federal monitoring program because it approved the pill in 2000, but the agency has step by step relaxed these restrictions over the years. In January, the requirement for patients to select up the pill in person, which allowed mifepristone to be delivered by post, was permanently lifted. The FDA also allowed retail pharmacies to start out shelling out pills for the first time.
But the agency maintained some restrictions. Patients must sign a form that outlines the risks of mifepristone and must obtain a prescription from a healthcare skilled who’s certified under the federal monitoring program. Pharmacies must even be certified under this program to dispense medication to a patient.
Ferguson and other attorneys general are asking a Washington state judge to lift those restrictions. The 17 states are Arizona, Colorado, Connecticut, Delaware, Illinois, Michigan, Nevada, Recent Mexico, Oregon, Rhode Island, Vermont, Hawaii, Maine, Maryland, Minnesota, Pennsylvania, and Washington.
“It only serves to make mifepristone harder for doctors to prescribe, harder for pharmacies to fill, harder for patients to access, and more burdensome for claimant states and their medical providers to dispense,” the attorney general told the judge in his criticism.
Cohen said the lawsuit in Washington raises the query of whether the Biden administration will appeal the decision, which directs the FDA to lift restrictions on mifepristone.
The White House may not want to clarify why it defends obstacles to drug-induced abortion, though the FDA probably desires to protect its regulator, Cohen said. It’s possible the Biden administration wouldn’t have appealed if it had lost Washington state and just let the remaining restrictions on the abortion pill fall, he added.
But Ferguson noted that on Tuesday the administration selected to defend the restrictions in court: “It wasn’t like they said, ‘Ferguson is true, we shouldn’t have these restrictions.’ They fight it, defend it. So what would they do if we won, I do not know.
Rachel Rebouche, an authority in reproductive health law at Temple University, said the Washington and Texas cases raise the prospect of Supreme Court involvement. Rebouche signed a protocol in a Texas case that defended the FDA’s approval of mifepristone.
If the Washington and Texas circuit court cases are appealed to the ninth and fifth circuit courts of appeals, respectively, and people courts reach conflicting rulings, “these are the questions which are most vital to the Supreme Court,” Rebouche said.
The slight majority of ninth Circuit judges were nominated by Democratic presidents, while the overwhelming majority of fifth Circuit judges were nominated by Republican presidents.
Oregon Attorney General Ellen Rosenblum, who co-led the Washington trial with Ferguson, said she had concerns about ending the case in the Supreme Court after last yr’s court decision to finish abortion rights in Roe v. Wade.
“We do not particularly want this case to develop into a U.S. Supreme Court case,” Rosenblum said.