Two federal judges issued conflicting opinions about the abortion drug mifepristone, leaving the FDA status of the drug up in the air.
Trump-appointed U.S. District Judge Matthew J. Kacsmaryk from Texas issued an injunction that directed the FDA to halt the approval of mifepristone until a lawsuit challenging its safety works its way through court. But a few hours later, Obama-appointed U.S. District Judge Thomas Rice from Washington state issued a conflicting preliminary injunction that barred the FDA from “altering” the current availability of mifepristone in certain Democratic-run states.
“The Court does not second-guess FDA’s decision-making lightly,” Kacsmaryk wrote in the 67-page opinion. “But here, FDA acquiesced on its legitimate safety concerns — in violation of its statutory duty — based on plainly unsound reasoning and studies that did not support its conclusions.” He added that the agency had faced “significant political pressure” to “increase ‘access’ to chemical abortion.”
That last point is undeniable. But does that make a drug approved 22 years ago any less safe? The argument that the drug was approved based on “unsound reasoning and studies that did not support its conclusions” is an opinion not shared by almost the entire scientific community and not just the government. Millions of women have used the drug safely.
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The issue isn’t whether the women should have taken the drug. The issue is the drug’s safety. And in study after study, mifepristone has been shown to be as safe as Tylenol.
In a competing opinion late Friday, a federal judge in Washington state ruled in a separate case involving mifepristone that the drug is safe and effective. U.S. District Judge Thomas O. Rice, who was nominated by President Barack Obama, ordered the FDA to preserve “the status quo” and retain access in the 17 states — along with D.C. — that are behind the second lawsuit, which seeks to protect medication abortion.
Within hours of the Texas ruling, the Justice Department and drug manufacturer Danco Laboratories filed their notice of appeal. Attorney General Merrick Garland said the government would ask the U.S. Court of Appeals for the 5th Circuit to allow the FDA to maintain approval of the pill pending the outcome of the case. Garland said in a statement that the department was still reviewing the decision out of Washington state.
You can’t make science a slave of ideology or politics. That’s what the left does and it’s just plain wrong. Nor can you cherry-pick only scientific studies that agree with your position. That’s stupid.
Biden issued a statement saying that Kacsmaryk’s decision was “another unprecedented step in taking away basic freedoms from women and putting their health at risk.”
Pregnancy is not a disease and I really wish the left would stop insisting that abortion is the cure for the ailment.
The conflicting and complicated decisions will likely put pressure on the FDA and the Biden administration to determine how to enforce the new mandates set by these rulings.
The judge’s decision in Texas to pause his own ruling for a week while the administration seeks review in the 5th Circuit, and the contrary ruling in Washington state, means no immediate change in the status quo. But the Biden administration might not want to wait for the 5th Circuit to act before bringing the issue to the Supreme Court.
Bringing the case to the Supreme Court without the benefit of the lower court buffer is risky. The court rarely accepts such cases. It’s more likely that both suits will be decided for the plaintiffs, leaving the FDA with an unholy mess.