WASHINGTON (CN) — The final word on mifepristone’s use nationwide will be in the hands of the Supreme Court after the Fifth Circuit issued a late-night ruling to keep the popular abortion pill on store shelves nationwide but under limited circumstances.
“The Justice Department strongly disagrees with the Fifth Circuit’s decision in Alliance for Hippocratic Medicine v. FDA to deny in part our request for a stay pending appeal,” Attorney General Merrick Garland said in a statement Thursday. “We will be seeking emergency relief from the Supreme Court to defend the FDA’s scientific judgment and protect Americans’ access to safe and effective reproductive care.”
Abortion rights advocates say the Fifth Circuit’s ruling would restrict abortion access nationwide, even if the New Orleans-based federal appeals court did not go as far as U.S. District Judge Matthew Kacasmaryk, who last week granted an injunction by to halt the approval that the Food and Drug Administration bestowed on mifepristone over 20 years ago.
“This decision is a wolf in sheep's clothing,” Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement. “The appellate court order repeats serious errors in Judge Kascmaryk ruling. Again, it is wrong on the facts and the law, resulting in an unprecedented override of the FDA’s scientific judgment.”
The ruling from the Fifth Circuit was unsigned and unpublished, meaning it can't be relied on as precedent.
“As the stay applicants, defendants bear the burden of showing why ‘extraordinary circumstances’ demand that we exercise discretion in their favor,” the motions panel of three Republican appointees wrote Wednesday. “To the extent the defendants make any such showing, they do so only with respect to the 2000 Approval — not the plaintiffs’ alternative arguments.”
U.S. Circuit Judge Catharina Haynes concurred with the ruling only in part. A footnote to the ruling says the George W. Bush appointee would have granted an administrative stay and deferred the question of a longer stay to a merits panel hearing oral arguments. Haynes was joined on the motions panel by U.S. Circuit Judges Kurt Engelhardt and Andy Oldham, both Trump appointees.
In its bid to stay the injunction, the Biden administration had to explain the harm it would face if Kacasmaryk’s ruling took effect. The FDA said people across the country would be harmed if they lost access to a medication used in reproductive care. The panel said those arguments focused too heavily on parties not before them.
“FDA’s assertion that the district court’s injunction will harm pregnant women or other members of the public does not speak to the irreparable injury factor (although it may speak to other factors), because those persons are not stay applicants in this case,” the panel wrote. “Since FDA does not articulate any irreparable harm that FDA will suffer absent a stay, it makes no showing on this ‘critical’ prong.”
Because the FDA and Danco — the producer of mifepristone — failed to show they would be injured by the district court’s ruling, the panel said it would offer tailored relief.
“The applicants’ arguments suggest, at best, that they require relief only from the district court’s treatment of the 2000 Approval,” the panel wrote. “They make no argument as to why the district court’s treatment of the 2016 Major REMS Changes and later FDA activity irreparably harms anyone.”
The 2016 changes relate to mifepristone’s administration — making it available for up to 10 weeks instead of seven — and distribution — allowing doctors to prescribe the pill via telehealth and distribute it through the mail.
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