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Mifepristone (Mifeprex), one of two drugs used in medical abortion, is shown at a women’s reproductive clinic that provides legal medical abortion services in Santa Teresa, New Mexico, on June 15, 2022.
Robyn Beck | AFP | Getty Images
The abortion pill mifepristone will remain fully available in more than a dozen states without any of the restrictions imposed by a U.S. appeals court this week, the attorney general who led the lawsuit to protect the drug said Thursday.
Attorney General Bob Ferguson of Washington said U.S. District Judge Thomas Rice’s order that the Food and Drug Administration maintain access to mifepristone in 17 states and the District of Columbia is “crystal clear.” The U.S. 5th Circuit Court of Appeals’ decision Wednesday night to impose stricter restrictions on abortion pills does not apply to those states, Ferguson said.
“No judge in Texas or the 5th Circuit can override a decision by a federal judge in Washington state,” he told CNBC.
Ferguson’s interpretation underscores the messy legal landscape that has emerged following dueling court decisions over the drug’s legal status. The Supreme Court appears poised to rule on the future of mifepristone — and perhaps soon.
Rice of the US Eastern District of Washington last Friday barred the FDA from “changing the status quo and rights regarding the availability of mifepristone” in states that sued to protect access to the drug.
His order applies to Arizona, Colorado, Connecticut, Delaware, Illinois, Michigan, Nevada, New Mexico, Oregon, Rhode Island, Vermont, Hawaii, Maine, Maryland, Minnesota, Pennsylvania, Washington state and Washington DC.
The Rice order maintains the FDA’s current regulatory framework in these states. This includes delivery of abortion pills by mail in these jurisdictions, the ability of retail pharmacies to dispense the medication if they are certified to do so, and the administration of mifepristone up to the 10th week of pregnancy.
“We have a ruling that is crystal clear, and we fully expect the FDA to comply with it,” Ferguson said.
Rice’s decision last week came just 20 minutes after U.S. District Judge Matthew Kacsmaryk of the U.S. Northern District of Texas unilaterally suspended the FDA’s more than two-decade-old approval of mifepristone and all subsequent regulatory actions the agency has taken since then.
The Justice Department appealed Kacsmaryk’s decision to the 5th Circuit Court of Appeals on Monday.
Three justices voted 2-1 on Wednesday to block Kacsmaryk’s attempt to halt the FDA’s approval of mifepristone. But he also introduced stricter restrictions on the drug, limiting access.
Judges Kurt Engelhardt and Andrew Oldham, appointed by former President Donald Trump, voted to temporarily block delivery of abortion pills by mail and reinstate doctor visits to receive the drug. The decision also shortened the time frame during which mifepristone can be taken in the 7th week of pregnancy. The 5th Circuit will hear oral arguments in the case at the earliest possible date.
The Justice Department earlier this week asked Rice to explain by Friday what the government’s legal obligations are under his order because it sees “significant” tension in Kacsmaryk’s decision. But Ferguson said Rice’s ruling was not ambiguous.
“Access to mifepristone remains unchanged,” he said.
“I don’t see a world in which the FDA would decide for Washington and the states that have joined our coalition to restore access in the way that the 5th Circuit envisions,” Ferguson said.
The Biden administration is appealing the 5th Circuit’s decision to the Supreme Court. U.S. Attorney Merrick Garland said Thursday that the Justice Department “strongly disagrees” with the appeals court and will seek urgent relief from the high court to “protect Americans’ access to safe and effective reproductive care.”
Glenn Cohen, a former attorney at the Justice Department, said the FDA will have an even stronger case for Supreme Court intervention if Rice argues that its order is valid in response to the government’s request for clarification.
“The interim need for a Supreme Court hearing becomes more compelling — and the FDA has a stronger argument for judicial review because two courts are telling it to do opposite things,” said Cohen, a health law expert at Harvard Law School. CNBC in email.
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