Washington Judge Tells FDA To Keep Mifepristone Available As Usual In States Involved

Mifepristone. Getty Images/TPM Illustration
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Judge Thomas Rice in the eastern district of Washington responded Thursday to government lawyers asking how they should comply with contradictory rulings on mifepristone that both came down Friday evening, one of which Rice wrote. 

He told them that, regardless of the ruling out of Texas, the government must comply with his order to keep mifepristone available as usual in the 17 states plus Washington D.C. that are part of the case. 

“That order is currently stayed and was not in effect at the time of this Court’s preliminary injunction,” he said of Judge Matthew Kacsmaryk’s ruling, which had stayed the Food and Drug Administration’s (FDA) approval of mifepristone. Aspects of Kacsmaryk’s ruling were stayed by the Fifth Circuit Court of Appeals Thursday morning. “Under these circumstances, because the Court has jurisdiction over the parties before it and limited its preliminary injunction only to the Plaintiff States and the District of Columbia, this Court’s preliminary injunction was effective as of April 7, 2023 and must be followed by Defendants.”

He added that “irrespective of the Northern District of Texas Court ruling or the Fifth Circuit’s anticipated ruling,” defendants are prohibited from “altering the status quo and rights as it relates to the availability of Mifepristone under the current operative January 2023 Risk Evaluation and Mitigation Strategy under 21 U.S.C. § 355-1 in Plaintiff States and the District of Columbia.”

The 2023 Risk Evaluation and Mitigation Strategy (REMS) are the current restrictions on mifepristone, which the FDA has lessened in recent years. In the The Fifth Circuit’s Thursday morning ruling, a panel of judges broke with Kacsmaryk on his rejection of the FDA’s original approval of the drug, but upheld challenges to the loosening of mifepristone’s restrictions that the FDA has carried out since 2016. 

Rice also infused his order with criticisms of judge shopping, the strategy by which right-wing litigants placed the case with Kacsmaryk, knowing that they’d likely get a friendly ruling from him and the Fifth Circuit. Sweetening the pot further, Kacsmaryk habitually hands down national injunctions, creating edicts for the entire country — at least until higher courts overturn him. Rice, in contrast, only ruled for the states and district that had actually joined the suit.

The Fifth Circuit would reimpose the more onerous restrictions on mifepristone of years past, an order that would apply nationwide and go into effect Saturday, barring intervention — seemingly in direct conflict with Rice’s order to preserve the drug’s availability as is. 

The Department of Justice announced that it would appeal that Fifth Circuit decision to the Supreme Court, where it is seeking an emergency stay. Supreme Court intervention is fairly inescapable at this point, given the additional conflict between the lower courts. 

Read Rice’s order here:

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