The Biden administration has rushed to appeal a Texas judge’s ruling that could suspend the approval of abortion pills nationwide and jeopardize access to the most common method of terminating a pregnancy.
Some Democrats say that’s not enough.
The judge appointed by former President Donald Trump sided with anti-abortion groups who said the FDA’s two-decade old approval of the drug mifepristone is unlawful and should be tossed, but the ruling won’t go into effect for a week to give the administration time to seek an emergency stay from higher courts.
Now, senators, representatives, state officials and advocacy groups are calling on President Joe Biden to defy the U.S. District Court judge and use his executive powers to protect the drugs’ availability even before the case is heard by the conservative-leaning 5th U.S. Circuit Court of Appeals.
“I believe the Food and Drug Administration has the authority to ignore this ruling, which is why I’m again calling on President Biden and the FDA to do just that,” Sen. Ron Wyden (D-Ore.) said Friday. “The FDA, doctors, and pharmacies can and must go about their jobs like nothing has changed and keep mifepristone accessible to women across America. If they don’t, the consequences of banning the most common method of abortion in every single state will be devastating.”
Rep. Alexandria Ocasio-Cortez (D-N.Y.) backed Wyden’s call in a CNN interview Friday, arguing that the “deeply partisan and unfounded nature” of the court’s decision undermines its own legitimacy and the White House should “ignore” it.
But the Biden administration is afraid any public defiance of the Friday-night ruling could hurt its position while the case moves through the appeals process.
A person who is advising the White House on legal strategy, granted anonymity to discuss the ongoing litigation, said administration officials think it would be “premature” and “pretty risky” to take the step Wyden is calling for, because it’s possible a higher court would reverse the decision by Texas U.S. District Court Judge Matthew Kacsmayrk.
“They’re able to present themselves right now as the adults in the room who care about the rule of law,” the person said. “But that posture would come under pressure if they jumped out of the gate and said they wouldn’t abide by the ruling.”
The person added that the White House sees limited benefit in publicly defying the court’s ruling at this juncture for three reasons:
First, ignoring a lower court ruling stripping FDA approval of the pills wouldn’t stop GOP-controlled states from imposing their own restrictions and prosecuting those who violate them. Second, a future Republican president could reverse any decision on enforcement discretion and choose to aggressively prosecute those who sell or prescribe the pills. And third, even in the short term, the president defying the court could leave doctors across the country afraid to dispense the pills.
“It’s a very, very loose Band Aid that wouldn’t actually ensure access to medication abortion,” the person said. “And when you have another option on the table like the appeals process, it’s a pretty risky strategy.”
Additionally, the person said, because the Texas judge put his ruling on hold for one week to give the Biden administration time to appeal, the pills can still be legally prescribed in much of the country, limiting the urgency to take such a drastic action.
Sen. Patty Murray (D-Wash.) told reporters on a call Saturday that while she is sympathetic to Wyden’s position, she doesn’t endorse anything that could jeopardize the administration’s fight to overturn the district court ruling.
“I get the sentiment, because this is a truly infuriating situation,” she said. “This outrageous decision had nothing to do with the facts or science or the law. But the key thing that needs to happen right now is making sure this decision is quickly appealed and reversed in court.”
Murray and Senate Majority Leader Chuck Schumer on Saturday signaled their intent to use the decision to mobilize their base in the 2024 elections — arguing that flipping the House and passing a law restoring Roe v. Wade is the best path to achieving more permanent protections for the pills than whatever temporary protections the Biden administration could offer through executive actions.
“This battle is going to be fought with public opinion and with our votes at the ballot box, from here until we move forward in 2024,” Murray said.
Schumer suggested Democrats will force votes in Senate in the coming months that “put Republicans on the record” on the issue.
“The American people will see for themselves the stark contrast between Democrats who are relentlessly fighting for women’s rights, to make decisions about their own bodies and MAGA Republicans who will stop at virtually nothing to enact a national abortion ban with no exceptions,” Schumer told reporters on Saturday.
Biden himself appeared to endorse this strategy in the hours after the ruling, saying in a statement that while the administration was appealing the case, “The only way to stop those who are committed to taking away women’s rights and freedoms in every state is to elect a Congress who will pass a law restoring Roe versus Wade.”
Even some abortion-rights leaders who have previously criticized the Biden administration for not doing enough to protect access say they support the wait-and-see strategy given the current judicial threats to the pills.
“They do tend to be cautious,” NARAL President Mini Timmaraju told POLITICO. “But with stakes like this, with these courts, they should be. They’re the defendant. We want them to be careful. Also, it has served them well in the past. So I feel confident the administration is doing what they need to do.”
Some legal experts are also warning the administration against defying the decision this early in the process, saying doing so could create a precedent that gives future presidents cover to ignore “future orders that would be more firmly rooted in the law.”
“It would not be advisable for the FDA to disregard a court order even if they believe it’s wrong,” said Joanne Rosen, an attorney and senior lecturer at the Johns Hopkins Bloomberg School of Public Health. “They could appeal. They could re-initiate the approval process of mifepristone all over again to get it back on the market.”
Yet others in the legal community are urging the administration to play hardball, arguing that the FDA was given enforcement discretion by Congress and previous court rulings and the agency should use those to the fullest extent if it is ultimately ordered to rescind its approval of abortion pills.
Those in this camp are pointing to another court ruling Friday night out of Washington State ordering the FDA to maintain the status quo for abortion pills and forbidding the agency from rolling back access in the dozen blue states that brought the challenge. Those clashing decisions, they say, give the Biden administration cover to maintain access to the drugs in defiance of the Texas court if that ruling stands.
“These are not radical,” said David S. Cohen, a professor at the Drexel University Thomas R. Kline School of Law. “These are real strategies within the law.”
Other Senate Democrats, anticipating this ruling, have called on the Biden administration to “use every legal and regulatory tool in its power” to keep abortion pills on the market. Sens. Elizabeth Warren (D-Mass.) and Mazie Hirono (D-Hawaii) recently petitioned the White House to use “any existing authorities, such as enforcement discretion, to allow mifepristone to remain available.
“FDA has previously used its authority to protect patients’ access to treatment and could do so again,” they wrote.
Timmaraju sees the mounting pressure from Democratic officials to ignore the court ruling as meaningful — even if they don’t ultimately goad the Biden administration into sweeping action.
“The senators are doing their jobs — it’s their job to push the White House and agencies like the FDA,” she said. “We need lawmakers from blue states getting out there and calling public attention to this case and raising awareness. For us, the biggest point people need to understand is that there is no state that is safe from these tactics.”
Adam Cancryn contributed reporting.