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Nearly Every Congressional Democrat Signs Brief Supporting Abortion Drug Access

“The perils of this unwarranted judicial intervention into science-based determinations can hardly be overstated.”

House Minority Leader Hakeem Jeffries, Sen. Dick Durbin, Rep. Katherine Clark and Senate Majority Leader Chuck Schumer walk out of the West Wing after meeting with President Joe Biden at the White House in Washington, D.C., on January 24, 2023.

In the wake of a far right Texas judge’s dangerous ruling that could lead to a key abortion drug being removed from pharmacies across the country, nearly every Democrat in Congress has signed on to a legal filing seeking to block the ruling and protect abortion access.

The brief supporting the Biden administration’s appeal of the ruling filed this week was signed by 240 Democrats, in an effort led by lawmakers like Senate Majority Leader Chuck Schumer (D-New York), Sen. Bernie Sanders (I-Vermont) and House Minority Leader Hakeem Jeffries (D-New York).

The lawmakers are seeking a stay on District Court Judge Matthew Kacsmaryk’s ruling on Friday that would suspend the Food and Drug Administration’s (FDA) 23-year-old approval of mifepristone, a drug taken in abortion procedures and used to manage certain hormonal disorders.

In the brief, the lawmakers say that Kacsmaryk has launched an unprecedented attack on not just mifepristone, but also the way that the FDA approves any and all drugs, as many legal analysts have also noted in recent days.

“By staying FDA’s two-decade old approval of mifepristone, the district court has disrupted the longstanding statutory framework and erroneously awarded an extraordinary remedy. Decades after FDA’s initial approval … the district court intruded into FDA’s drug approval process, casting a shadow of uncertainty over its decisions,” the lawmakers argued in the brief.

“The perils of this unwarranted judicial intervention into science-based determinations can hardly be overstated,” the brief says, warning that the “perilous consequences” of Kacsmaryk’s ruling “reach far beyond mifepristone.” The lawmakers also warn that suspending access to mifepristone would worsen an already widespread crisis of abortion access that is also affecting other crucial reproductive services like care for miscarriages, also known as spontaneous abortions.

“Rather than affording any deference to FDA, the district court appears to have second-guessed FDA’s expert determinations with cherry-picked anecdotes and studies, and on that basis, imposed a remedy that could significantly upend the status quo,” they wrote.

The brief was signed by every member of the Democratic caucus in the Senate except for conservative Sen. Joe Manchin (D-West Virginia), who is a vocal opponent of abortion rights. It was also signed by 190 out of 213 Democrats in the House, including progressive members like Rep. Alexandria Ocasio-Cortez (D-New York) and Congressional Progressive Caucus Chair Rep. Pramila Jayapal (D-Washington), and excluding conservative Democrats like Rep. Henry Cuellar (D-Texas).

The brief was filed in support of an appeal by the Department of Justice on Monday to a federal appeals court to ensure that mifepristone stays on the market until the case can be settled, as it is likely to reach the Supreme Court. Currently, the drug is still available in states where it is legal, after a federal judge in Washington filed a competing order to Kacsmaryk’s on Friday, mandating that authorities keep the drug in the market.

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