DOJ to Ask Supreme Court to Intervene in Abortion Pill Case

April 13, 2023

The Department of Justice announced Thursday that it will seek emergency intervention from the Supreme Court following an appeals court ruling on access to the abortion pill mifepristone.

The 5th Circuit U.S. Court of Appeals approved access to the pill, but with a new time limits on its use of up to the first seven weeks of pregnancy, versus the FDA’s approval of up to 10 weeks.

The appeals court also put an injunction on sending the abortion pill through the mail. 

In a statement Thursday, Attorney General Merrick Garland said the DOJ “strongly disagrees” with the appeals court’s decision, adding that the Biden Administration would “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.”

The 5th Circuit ruling came in response to an appeal by the DOJ to a ruling by U.S. District Judge Matthew Kacsmaryk in Amarillo, Texas who halted the FDA’s approval of mifepristone on Friday. That ruling would halt sales nationwide—even in states where abortion remains legal—while a lawsuit regarding the pill brought by anti-abortion groups proceeds.

Approved by the Food and Drug Administration 23 years ago, mifepristone can be used along with another pill, misoprostol, to end a pregnancy. Currently about half of all abortions in the U.S. are medication abortion.

In a separate decision on Friday, U.S. District Court Judge Thomas Rice in Washington state blocked the FDA from from making any changes to access to mifepristone.

Rice handed down his ruling shortly after Kacsmaryk’s ruling on Friday. Presiding over a lawsuit brought by 17 states and the District of Columbia, Rice called the Texas judge’s nationwide injunction “inappropriate.”

The 5th Circuit did not mention the Washington ruling in its decision. 

Echoing Rice, some 400 pharmaceutical company executives signed a written statement this week saying Kacsmaryk’s ruling ignored both scientific and legal precedent. 

“If courts can overturn drug approvals without regard for science or evidence, or for the complexity required to fully vet the safety and efficacy of new drugs, any medicine is at risk for the same outcome as mifepristone,” the execs said.

On June 24 of last year, the conservative supermajority on the Supreme Court ruled 6-3 to overturn Roe v Wade and 50 years of the Constitutional right to abortion.

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