Mifepristone (Mifeprex), one of two drugs used in medical abortion, is displayed at the Women’s Reproductive Clinic, which provides legal medical abortion services, in Santa Teresa, New Mexico, on June 15, 2022.
Robin Beck | AFP | Getty Images
The abortion pill mifepristone will remain fully available in more than a dozen states without any of the restrictions imposed by a U.S. appeals court this week, the state attorney general who led a lawsuit to protect the drug said Thursday.
Attorney General Bob Ferguson of Washington said U.S. District Judge Thomas Rice’s order that the Food and Drug Administration preserve access to mifepristone in 17 states and the District of Columbia is “crystal clear.” Wednesday night’s decision by the 5th U.S. Circuit Court of Appeals to impose tighter restrictions on abortion pills does not apply in those states, Ferguson said.
“No judge in Texas or the 5th Circuit can overturn what a federal judge in Washington state has decided,” he told CNBC.
Ferguson’s interpretation underscores the muddled legal landscape that has emerged after dueling court rulings over the drug’s legal status. The Supreme Court appears poised to rule on the future of mifepristone — and potentially soon.
Rice of the U.S. Eastern District of Washington last Friday barred the FDA from “altering the status quo and rights related to the availability of mifepristone” in states that have filed lawsuits to protect access to the drug.
His order applies to Arizona, Colorado, Connecticut, Delaware, Illinois, Michigan, Nevada, New Mexico, Oregon, Rhode Island, Vermont, Hawaii, Maine, Maryland, Minnesota, Pennsylvania, Washington state and Washington
Rice’s order preserves the FDA’s current regulatory framework in those states. This includes mail order delivery of the abortion pill in those jurisdictions, the ability of retail pharmacies to dispense the drug if they are certified to do so, and the administration of mifepristone up to the 10th week of pregnancy.
“We have a decision that is crystal clear, and our full expectation is that the FDA will follow it,” Ferguson said.
Rice’s ruling last week came just 20 minutes after U.S. District Judge Matthew Kaczmarik of the U.S. Northern District of Texas unilaterally suspended more than two decades of FDA approval of mifepristone and all subsequent regulatory actions taken by the agency since then.
The Justice Department appealed Kacsmaryk’s decision to the 5th Circuit Court of Appeals on Monday.
A three-judge panel voted 2-1 on Wednesday to block Kacsmaryk’s attempt to stop the FDA’s approval of mifepristone. But it also imposed tighter restrictions on the drug that limited access.
Judges Kurt Engelhardt and Andrew Oldham, who were appointed by former President Donald Trump, voted to temporarily block the mail order delivery of the abortion pill and reimpose doctor visits to obtain the drug. The decision also shortened the time frame in which mifepristone can be administered until the 7th week of pregnancy. The 5th Circuit will hear oral arguments in the case at the earliest possible date.
The Justice Department asked Rice earlier this week to clarify by Friday what the government’s legal obligations are under his order, as it sees “significant” tension with Kaczmarik’s ruling. But Ferguson said there was no ambiguity in Rice’s decision.
“Access to mifepristone remains unchanged,” he said.
“I don’t see a world where the FDA decides for Washington and the states that have joined our coalition that they’re going to restore access the way the 5th Circuit envisions,” Ferguson said.
The Biden administration appealed the 5th Circuit’s decision to the Supreme Court. US Attorney General Merrick Garland said Thursday that the Justice Department “strongly disagrees” with the appeals court and will seek urgent help from the Supreme Court to “protect Americans’ access to safe and effective reproductive care.”
Glenn Cohen, a former attorney at the Justice Department, said the FDA would have an even stronger case for the Supreme Court’s intervention if Rice maintains that its order is valid in response to the government’s request for clarification.
“The need to go to the Supreme Court in the meantime becomes more pressing — and the FDA has a stronger case for judicial review because two courts are telling it to do opposite things,” said Cohen, a health law expert at Harvard Law School. to CNBC in an email.