Abortion pill rulings in conflict: What happens next?

The Biden administration on Monday asked a federal appeals court to allow women to continue to be able to access to the most commonly used abortion drug in the U.S. while a lawsuit over it plays out

Boxes of the drug mifepristone sit on a shelf at the West Alabama Women's Center in Tuscaloosa, Ala., March 16, 2022
Boxes of the drug mifepristone sit on a shelf at the West Alabama Women's Center in Tuscaloosa, Alabama, on March 16, 2022.Allen G. Breed (AP)

The Texas case that could cut off access to the most commonly used abortion medication has started on a path through the legal system that could quickly lead to the Supreme Court.

The drug, mifepristone, was approved for use by the Food and Drug Administration more than two decades ago. It’s used in combination with a second drug, misoprostol. Since its approval, mifepristone has been used by more than five million women to safely end their pregnancies and today more than half of women who end a pregnancy rely on the drug, the Justice Department said.

But in a far-reaching ruling Friday, a federal judge in Texas blocked the FDA’s approval of the drug following a lawsuit by the pill’s opponents. The ruling, which the judge put on hold for a week to allow for an appeal, could affect access to the drug in every state. On Monday, the Biden administration asked an appeals court to allow access to the drug while the case continues to play out.

There is also a twist: The Texas ruling came at virtually the same time a judge in Washington state, ruling in a different lawsuit brought by liberal states, ordered the FDA not to do anything that might affect the availability of mifepristone in the suing states.

The following is a look at what has happened so far, the conflicting rulings and how the legal fight might be expected to unfold:

How did the case get started?

The Texas lawsuit over mifepristone was filed in Amarillo late last year. Alliance Defending Freedom, a conservative Christian legal group, represents the pill’s opponents, who say the FDA’s approval of mifepristone was flawed. Erin Morrow Hawley, the wife of Republican Sen. Josh Hawley of Missouri, is one of the lead lawyers in the case.

Why Amarillo? U.S. District Judge Matthew Kacsmaryk, an appointee of former President Donald Trump, is the sole district court judge there, ensuring that all cases filed in the west Texas city land in front of him. Since taking the bench, he has ruled against the Biden administration on several other issues, including immigration and LGBTQ protections.

In March, Kacsmaryk held a hearing in the case that lasted more than four hours and was notable in part because Kacsmaryk sought to delay publicizing that it would happen to avoid protests. His ruling came approximately three weeks later.

The Washington state ruling was issued by Spokane-based Judge Thomas O. Rice, an appointee of former President Barack Obama.

What is going on now?

The Biden administration is asking the New Orleans-based 5th U.S. Circuit Court of Appeals to prevent Kacsmaryk’s ruling from taking effect for now. Late Monday, the appeals court ordered the other side to respond by midnight Tuesday.

“If allowed to take effect, the court’s order would thwart FDA’s scientific judgment and severely harm women, particularly those for whom mifepristone is a medical or practical necessity,” the Justice Department wrote to the appeals court, which handles appeals from Texas, Louisiana and Mississippi. The department said the drug is used not only for abortions but also to manage miscarriages.

Also on Monday, the Biden administration asked the court in Washington to clarify its order, which the Justice Department notes is in “significant tension” with the Texas ruling. It would seem impossible for the FDA to comply with Kacsmaryk’s nationwide order withholding approval of mifepristone, and the Washington order requiring its availability in the states that sued. The Biden administration asked for clarification by Friday, noting that Kacsmaryk’s ruling will take effect at midnight Central Time on Saturday assuming the appeals court doesn’t step in.

For now, at least, the Texas case seems a better bet to reach the Supreme Court. But it’s not totally clear how the Washington ruling might affect Kacsmaryk’s order.

What could happen next?

The administration’s request in the Texas case will be handled by three judges on the appeals court. The appeals court is dominated by conservative judges, but it’s not yet clear which three judges will handle the case.

The panel of judges that reviews the case has options. One option is to grant the administration’s request for a temporary pause of Kacsmaryk’s ruling. That would essentially relieve the court of the deadline pressure imposed by Kacsmaryk. It would give the court more time to weigh whether to issue a more enduring hold on the ruling that presumably would last until the case is finally resolved.

The judges also could grant a more lasting stay of Kacsmaryk’s ruling in the first instance, once both sides have made arguments in writing. The appeals court could also reject the administration’s plea.

On to the nation’s capital

Whatever happens at the appeals court, the losing side will almost certainly will take its case to the Supreme Court. Once again, the administration could first ask for an immediate pause to give the justices more time to fully consider the issue.

Conservative justices last year overturned Roe v. Wade, the landmark abortion rights case, and said states should decide whether to allow abortions within their borders. But if they hoped that their decision would remove abortion from their docket, the fight over the abortion pill shows that it’s not gone.

This time, though, while the case is about an abortion pill, the issues that are headed the court’s way are about the rules that govern federal regulations and technicalities in the law: Did FDA take the right steps before approving the use of mifepristone? Do the anti-abortion groups and doctors who are suing the FDA have the legal right, or standing, to be in court? Did too much time elapse since the approval of mifepristone in 2000?

There is no timetable for when the Supreme Court might act, especially if a temporary pause keeps the FDA’s approval of the pill in place.

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