Abortion-legal states point appeals court to Texas mifepristone ruling

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Matthew Kacsmaryk, deputy counsel at First Liberty Institute, answers questions during a nomination hearing before the U.S. Senate Judiciary Committee in the Dirksen Senate Office Building in Washington, U.S., on December 13, 2017, in a video photo.

Reuters

Attorneys general for nearly half of the US states in the new court filing warn that a federal judge’s decision to suspend the Food and Drug Administration’s 23-year-old approval mifepristone across the country “poses devastating risks to millions of people,” including those in states where abortion remains legal.

Attorneys general appealed to the U.S. 5th Circuit on Monday Court of Appeal to keep mifepristone on the market as legality litigates pill game out.

Judge Matthew Kacsmaryk of the U.S. District Court in Amarillo, Texas, effectively overturned on Friday FDA approval mifepristone.

But he delayed his decision for a week to give the Biden administration time to appeal.

Kacsmaryk’s ruling will go into effect at 12 a.m. ET on Saturday, unless the 5th Circuit stays it.

In their filing Monday, Democratic attorneys general for 23 states and the District of Columbia blasted Kacsmaryk’s ruling as “legally flawed” and warned it would undermine the FDA’s approval process.

Global consultants argued that Kacsmaryk’s order would “nullify sovereign decisions” made by states to protect access to abortion after the Supreme Court’s decision last summer to overturn Roe v. Wade, a case that has argued since 1973 that a federal constitutional right to abortion.

Mifepristone, used in combination with another drug called misoprostol, is the most common method of terminating a pregnancy in the US, accounting for about half of all abortions.

The General Counsels cited this fact in their court action.

“Because medical abortion is the most common method used to terminate a pregnancy in the first trimester, limiting access to this method will result in more abortions later in pregnancy, further increasing costs and health risks,” the advisers wrote.

On Monday, the Justice Department asked the 5th Circuit to rule on his request hold off Kacsmaryk’s decision until noon Thursday “to enable the government to seek relief from the Supreme Court if necessary.”

Danco Laboratories, the distributor of mifepristone, also asked the appeals court to suspend Kacsmaryk’s decision for at least 14 days so the company can “seek emergency relief from the Supreme Court.”

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There is considerable uncertainty about how Kacsmaryk’s decision will affect the legality of mifepristone unless his decision is blocked by the 5th Circuit or the Supreme Court.

Just 20 minutes after Kacsymaryk issued his ruling last Friday, another federal judge, Thomas Rice of the Eastern District of Washington, barred the FDA from “altering the status quo and rights regarding the availability of mifepristone” in D.C. and the 17 states that sued, to keep the drug on the market in their jurisdictions.

The Justice Department asked Rice to explain how the FDA should respond to his ruling if Kacsmaryk’s decision goes into effect, noting that the Washington state ruling appears to be in “significant tension” with the Kacsmaryk decision .

The Justice Department has asked Rice to respond to that question by Friday.

Kacsmaryk’s decision does not affect the availability of misoprostol, which is recommended by the World Health Organization as a stand-alone abortion drug.

States like California are stockpiling misoprostol in case Kacsmaryk’s decision takes effect.

In addition to the District of Columbia, the states that filed Monday with the 5th Circuit include Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and Wisconsin.

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