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Biden Admin Files Emergency Brief to Supreme Court on Abortion Medication

Lower court rulings on mifepristone “blatantly ignore both the law and the science,” abortion advocates have noted.

Pro-abortion and anti-abortion activists rally near the U.S. Supreme Court in Washington, D.C., on January 22, 2023.

The Biden administration filed an emergency request to the U.S. Supreme Court on Friday, asking that a lower court’s stay on a partial order from an appellate court be blocked while a case on the abortion medication mifepristone is litigated.

U.S. District Judge Matthew Kacsmaryk, a far right appointee of former President Donald Trump who has expressed anti-abortion views prior to his judgeship, issued a nationwide order earlier this month banning the use of mifepristone, claiming, without evidence, that the drug’s approval by the Food and Drug Administration (FDA) decades ago had been improper. Kacsmaryk’s ruling cited bogus scientific findings and contradicted decades of research showing that the drug is both safe and effective.

In an appeal of Kacsmaryk’s ruling, the U.S. District Court of Appeals for the Fifth Circuit placed a partial stay on the order, allowing the drug to continue to be accessible. But that ruling also implemented additional obstacles, barring the drug’s use after seven weeks of pregnancy. (It had previously been approved for up to 10 weeks.) The partial stay also barred mifepristone from being ordered by mail until litigation on the drug was settled.

The U.S. Department of Justice (DOJ) denounced the rulings in a brief filed to the Supreme Court.

Keeping those orders in place would have “sweeping consequences for the pharmaceutical industry, women who need access to the drug, and FDA’s ability to implement its statutory authority,” the DOJ said, adding that the “resulting disruption would deny women lawful access to a drug FDA deemed a safe and effective alternative to invasive surgical abortion.”

The action by Kacsmaryk was unprecedented, the Justice Department said, adding:

To the government’s knowledge, this is the first time any court has abrogated FDA’s conditions on a drug’s approval based on a disagreement with the agency’s judgment about safety — much less done so after those conditions have been in effect for years. And the lower courts reached that unprecedented result only through a series of fundamental errors.

Drug manufacturer Danco also submitted a request to the Supreme Court, calling for the remaining terms of Kacsmaryk’s stay to be lifted. Keeping parts of the stay in place would effectively create a temporary ban on the drug, making it “exceedingly difficult, if not impossible” for the company to continue making and selling the drug if the Supreme Court doesn’t act, as they would have to update bottle labels in order to be compliant with the order — a process that could take several months.

The generic version of the drug would also be outright banned under the current terms of the order, the DOJ noted.

Reproductive rights advocates decried the Fifth Circuit Court’s ruling earlier this week.

The Fifth Circuit’s order “blatantly ignores both the law and the science just like the lower court did,” the American Civil Liberties Union (ACLU) said in a statement. “It ignores both the scientific experts at the FDA and over 100 studies on the safety and efficacy of mifepristone in favor of a few anecdotes provided from anti-abortion extremists.”

The ruling won’t just force people to remain pregnant “against their will,” the organization noted, but also has “the potential to deny people access to other critical, life-saving drugs.”

NARAL Pro-Choice America President Mini Timmaraju also condemned the Fifth Circuit’s order.

“By reinstating outdated and unnecessary restrictions, these judges — many of whom were appointed by a twice-impeached now-indicted former president — put tens of millions of people’s health at risk,” Timmaraju said.

“Anti-choice extremists want to ban all abortion, everywhere. They can’t win elections, so they’ve turned to the courts to do their dirty work,” she added.

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