Two federal judges issued conflicting rulings this week regarding the Federal Drug Administration’s approval of mifepristone, a drug used to induce an abortion, setting up a legal conflict likely headed for the U.S. Supreme Court. The drug was approved by the FDA 23 years ago.
In Texas, conservative Judge Matthew Kascmaryk, who was known to oppose abortion when he was nominated to the bench by President Donald Trump, held that the FDA did not follow proper protocols in approving the abortion pill, and then stonewalled efforts to challenge its use. He ordered the approval withdrawn nationwide.
Mindful of the enormous ramifications of his decision – no court has ever overthrown the Fda’s decision to permit a particular drug before – Kascmaryk stayed the implementation of his ruling to allow the government time to appeal to the Fifth Circuit Court of Appeals. Attorney General Merrick Garland denounced the ruling, saying, “Today’s decision overturns the F.D.A.’s expert judgment, rendered over two decades ago, that mifepristone is safe and effective.” He said the government would appeal.
The plaintiffs in the case, a group of anti-abortion doctors and activists, incorporated their organisation in Texas last year, after the U.S. Supreme Court overturned Roe v. Wade, the 1973 decision that established a constitutional right to procure an abortion nationwide. Known as “forum shopping”, it is not uncommon for plaintiffs to seek a sympathetic judge to hear their case.
A few hours later, in Washington state, Judge Thomas Rice barred the Fda from taking “any action to remove mifepristone from the market or otherwise cause the drug to become less available”. In that case, 18 Democratic attorneys general were suing to remove the restrictions on the drug’s use that are already in place.
The duelling judicial conclusions demonstrate that the nation’s courts, like its people, are deeply divided on the morality and legality of abortion. Last year’s Supreme Court ruling technically sent the issue back to state legislatures to adopt whatever regulations of the procedure they think appropriate, but it is not that simple, especially regarding chemical abortions. The federal government, not the states, regulate access to drugs. States can ban abortion pills within their borders, but the Interstate Commerce clause gives the federal government oversight over products, including medicines, distributed nationwide.
The U.S. Conference of Catholic Bishops did not issue a statement reacting to the rulings, nor did the state Catholic conferences in Texas or Washington.
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