Attorney General Merrick Garland said Thursday in a statement that the Justice Department will appeal to the Supreme Court after the Fifth Circuit Court of Appeals reimposed restrictions on mifepristone that the Food and Drug Administration (FDA) had lifted.
“The Justice Department strongly disagrees with the Fifth Circuit’s decision in Alliance for Hippocratic Medicine v. FDA to deny in part our request for a stay pending appeal,” he said in a statement. “We will be seeking emergency relief from the Supreme Court to defend the FDA’s scientific judgment and protect Americans’ access to safe and effective reproductive care.”
The Fifth Circuit upheld much of District Court Judge Matthew Kacsmaryk’s opinion, though the panel of Republican appointees broke with him on rejecting the FDA’s original approval of mifepristone. The panel held that the statute of limitations had passed to challenge that agency action.
It did, though, allow challenges to subsequent FDA actions to stand, reimposing a slate of mifepristone restrictions — restoring onerous in-person requirements, limiting the drug’s on-label use to only up to 50 days into a pregnancy — that the FDA had lifted since 2016.
The panel also greenlit Kacsmaryk’s novel theory on standing, which let a group of anti-abortion doctors who don’t prescribe mifepristone — but argue that they may, at some future date, have to treat women suffering from the drug’s supposed complications — bring the suit in the first place. If that theory survives the Supreme Court too, the pool of people who could bring challenges to the FDA’s drug approval and decision making would be dramatically expanded.
The gauntlet of exceedingly anti-abortion-friendly courts this case must travel through is by design. It’s just one entry in a long list of examples of right-wing litigants placing their cases in divisions run by only one or two Trump appointees that are also governed by very conservative appellate courts. That path has often run through Kacsmaryk’s courtroom in Amarillo to the Fifth Circuit.
This judge shopping is part of the reason some Democratic lawmakers are calling on the administration to ignore Kacsmaryk’s ruling, and rulings upholding it, and use the FDA’s enforcement discretion to leave the drug on the market as usual.
Perhaps out of confidence that even the deeply anti-abortion Supreme Court would balk at cosigning the unprecedented standing theories this case rests on, the Biden administration has been putting a heavy emphasis on playing out the appeals process. The White House told TPM that it would not heed those calls from Democratic lawmakers, that it was instead gearing up for a “long legal fight.”
