Key court ruling does not restrict abortion pill access in 17 states, federal judge says
The Justice Department is escalating the abortion pill legal case to the Supreme Court after an appeals court ruling limited access to the drug mifepristone.
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Mifepristone (Mifeprex), one of the two drugs used in a medication abortion, is displayed at the Women's Reproductive Clinic, which provides legal medication abortion services, in Santa Teresa, New Mexico, on June 15, 2022.
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A U.S. district judge in Washington state on Thursday said access to the abortion pill mifepristone is not affected by a federal appeals court ruling that imposed restrictions on the medication this week.
Judge Thomas Rice of the state's U.S. Eastern District last Friday ordered the Food and Drug Administration to preserve access to mifepristone in 17 states and the District of Columbia which sued to protect the drug in those jurisdictions.
Rice reiterated in a court order on Thursday that the FDA cannot roll back access to the drug, despite a decision by the U.S. 5th Circuit Court of Appeals this week that imposed restrictions on how the medication is dispensed and used by patients.
"No judge in Texas or the 5th Circuit gets to override what a federal judge in Washington state has decided," Washington state Attorney General Bob Ferguson told CNBC earlier Thursday. Ferguson led the lawsuit to preserve access in the 17 states and the district.
Rice's Thursday order underscores the messy legal landscape that has emerged following dueling court decisions on the drug's legal status. The U.S. Supreme Court appears poised to decide on the future of mifepristone — and potentially soon.
Rice's order applies to Arizona, Colorado, Connecticut, Delaware, Illinois, Michigan, Nevada, New Mexico, Oregon, Rhode Island, Vermont, Hawaii, Maine, Maryland, Minnesota, Pennsylvania, Washington and the District of Columbia.
Rice's order keeps the FDA's current regulatory framework in place in those jurisdictions. This includes mail delivery of the abortion pill, the ability of retail pharmacies to dispense the medication if they are certified to do so, and the administration of mifepristone up to the 10th week of pregnancy.
"We have a ruling that's crystal clear, and our full expectation is that the FDA will honor it," Ferguson said earlier Thursday.
Rice's decision last Friday came just 20 minutes after U.S. District Judge Matthew Kacsmaryk of the U.S. Northern District of Texas unilaterally suspended the FDA's more than two-decade-old approval of mifepristone and all subsequent regulatory actions the agency has taken since then.
The Department of Justice 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 suspend the FDA's approval of mifepristone. But it also imposed tougher restrictions on the drug that limit access.
Judges Kurt Engelhardt and Andrew Oldham, who were appointed by former president Donald Trump, voted to temporarily block mail delivery of the abortion pill and reimpose doctor visits to receive the drug. The decision also shortened the time frame in which mifepristone can be administered to up to the seventh week of pregnancy. The 5th Circuit will hear oral arguments in the case at the earliest available date.
The DOJ asked Rice earlier this week to clarify by Friday what the government's legal obligations are under his order because it sees "significant" tension with Kacsmaryk's decision. Rice said on Thursday that Kacsmaryk's order and the 5th Circuit ruling have no bearing on access to mifepristone in the 17 states and D.C.
"I don't see a world in which the FDA decides for Washington and the states that joined our coalition that they're going to roll back access in the way the 5th Circuit imagines," Ferguson said earlier Thursday.
The Biden administration is appealing the 5th Circuit's decision to Supreme Court. U.S. Attorney General Merrick Garland on Thursday said the DOJ "strongly disagrees" with the appeals court and will seek emergency relief from the high court to "protect Americans' access to safe and effective reproductive care."
Glenn Cohen, a former attorney with the DOJ, said the FDA has an even stronger argument for the court to intervene after Rice maintained his order preserving access in response to the government's request for clarification.
"The need to go to the Supreme Court in the interim becomes more compelling — and FDA has a stronger argument for Court review since two courts are telling it to do opposite things," Cohen, an expert on health law at Harvard Law School, told CNBC in an email prior to Rice's clarification on Thursday.
