Dueling court cases in Washington state and Texas could decide the legality of abortion pills

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Two federal judges will soon issue rulings in a battle that could dramatically affect access to the abortion pill mifepristone.

In Washington state, U.S. Judge Thomas Rice is weighing whether to overturn federal mifepristone regulations that make access difficult even where abortion is legal. He is also considering whether to issue an order that would prevent the Food and Drug Administration from taking any action to pull the pill from the market or reduce its availability.

In Texas, US Judge Matthew Kacsmaryk is considering whether the FDA would order a withdrawal of mifepristone from the American market. Anti-abortion medical associations sued the FDA in November to overturn its approval of the more than 20-year-old drug.

In Spokane on Tuesday, Rice heard arguments from the FDA and a legal team representing the Democratic attorneys general who filed the lawsuit challenging the agency. The entire treatment lasted less than an hour.

Kacsmaryk heard the arguments in Texas case earlier this month and said he would issue the order as soon as possible. Kacsmaryk was appointed by the previous president Donald Trump Rice was appointed by the previous president Barack Obama.

“When we filed the complaint, we were obviously well aware of what was going on in Texas. That’s just the legal world we live in,” said Washington state Attorney General Bob Ferguson, who is leading the lawsuit to keep mifepristone on the market. and expand access to medicine.

The US is now bracing for the possibility that two federal district courts could issue rulings on the abortion pill that conflict with each other, which could add further confusion to the already complex web of state-by-state mifepristone regulations.

Examples also increase the possibility that Supreme Court could end up embroiled in escalating litigation over the most common abortion method in the US

“If we get two diametrically opposed rulings on what the FDA should do, it will almost certainly go to the U.S. Supreme Court,” said Glenn Cohen, a former attorney for the Justice Department’s civil division and a professor at Harvard Law School. Cohen signed a document supporting the FDA’s approval of mifepristone in the Texas case.

Ferguson said the case in Washington state asks the judge to expand and protect access to mifepristone, particularly in the 17 states and D.C. that are parties to the lawsuit. In the Texas case, anti-abortion medical associations are asking a judge to pull the abortion pill from the U.S. market nationwide.

If a Texas judge rules first and orders the FDA to pull mifepristone off the market, a federal judge in Washington state can still issue an order that at least preserves access in the 17 states and D.C. that are parties to the lawsuit, Ferguson said.

“A federal judge in Washington will find out about Washington and that would keep it in Washington state and the plaintiff states, but you would have competing injunctions and sometimes that gets resolved on appeal,” Ferguson said.

“There could be a situation where it’s not available in some states and it’s available in some states. All of those things are possible. But a lot depends on how these judges write those decisions,” Ferguson said.

Mifepristone has been subject to restrictions under the federal monitoring program by the FDA since it approved the pills in 2000, but the agency has gradually eased those restrictions over the years. In January, it finally eliminated the requirement that patients receive the pills in person, allowing mifepristone to be delivered by mail. The FDA also allowed retail pharmacies to begin dispensing the pills for the first time.

But the agency maintained some restrictions. Patients must sign a form stating the risks of mifepristone and must obtain a prescription from a health care provider certified under a federal monitoring program. In accordance with this program, pharmacies must also be certified to dispense medication to patients.

Ferguson and 17 other state attorneys general are asking a judge in Washington state to drop those restrictions. The states include Arizona, Colorado, Connecticut, Delaware, Illinois, Michigan, Nevada, New Mexico, Oregon, Rhode Island, Vermont, Hawaii, Maine, Maryland, Minnesota, Pennsylvania, and Washington State. DC is also a party to the suit.

“It is only intended to make it more difficult for doctors to prescribe mifepristone, for pharmacies to fill it, for patients to access it, and to make dispensing mifepristone more burdensome for plaintiff states and their health care providers,” the Democratic attorneys general told the judge in their complaint .

Cohen said Washington state’s lawsuit raises the question of whether the Biden administration would appeal the decision ordering the FDA to drop restrictions on mifepristone.

The White House may not want to explain why they are advocating barriers to medical abortion, although the FDA likely wants to protect its regulatory authority, Cohen said. It’s possible the Biden administration wouldn’t appeal if they lost in Washington state and let the remaining restrictions on the abortion pill lapse, he added.

But Ferguson noted that the Biden administration decided to defend the restrictions in court on Tuesday: “It wasn’t like they said Ferguson is right that we shouldn’t have these restrictions. They’re fighting it, they’re defending it. So , what they would have done if they had won, I don’t know,” he said.

Rachel Rebouche, an expert on reproductive health law at Temple University, said the cases in Washington state and Texas raise the possibility of the Supreme Court getting involved. Rebouche signed the brief in the Texas case that defended the FDA’s approval of mifepristone.

If district court cases in Washington and Texas are appealed to the 9th Circuit Court of Appeals and the 5th Circuit Court of Appeals, respectively, and those district courts issue conflicting decisions, “those are issues that are the main ones for the Supreme Court,” Rebouche said.

A slight majority of judges in the 9th Circuit were appointed by Democratic presidents, while a large majority of judges in the 5th Circuit were appointed by Republican presidents.

Oregon Attorney General Ellen Rosenblum, who along with Ferguson led the lawsuit in Washington state, said she would have concerns about the case ending up at the Supreme Court after last year’s decision to end Roe. “We don’t want this to become a U.S. Supreme Court case,” Rosenblum said.

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