Dueling federal rulings Friday night — one staying the Food and Drug Administration’s (FDA) approval of abortion drug mifepristone, and one ordering the FDA to maintain the status quo of the drug’s availability for more than a dozen states involved — stirred up a flurry of speculation and lobbying regarding the Biden administration’s next steps.
Some of those advocates had long been laying the groundwork for their positions. The decision revoking the approval came from Judge Matthew Kacsmaryk, a constant Biden administration foe and former anti-abortion lawyer. Before Friday, the question had been not if but when he’d issue a ruling to limit abortion access.
“I believe the Food and Drug Administration has the authority to ignore this ruling, which is why I’m again calling on President Biden and the FDA to do just that,” Sen. Ron Wyden (D-OR) said Friday. “The FDA, doctors, and pharmacies can and must go about their jobs like nothing has changed and keep mifepristone accessible to women across America. If they don’t, the consequences of banning the most common method of abortion in every single state will be devastating.”
Sens. Elizabeth Warren (D-MA) and Mazie Hirono (D-HI) recently appealed to the White House to use any tools at its disposal to keep the drug available, including its enforcement discretion. Rep. Alexandria Ocasio-Cortez (D-NY) also called on the administration to “ignore” the Friday decision.
The White House told TPM Monday that it will not heed those calls.
“No,” a White House spokesperson said, when asked whether it plans to ignore Kacsmaryk’s ruling, and any future decisions upholding it, and have the FDA use its enforcement discretion to leave mifepristone on the market.
“We stand by FDA’s approval of mifepristone, and we are prepared for a long legal fight, if needed,” the spokesperson continued. “The focus of the Administration is on ensuring that we prevail in the courts. There is a process in place for appealing this decision and we will pursue that process vigorously and do everything we can to prevail in the courts.”
It’s in keeping with how members of the administration have talked publicly about the case — emphasizing the judicial procedure, though not talking about what it’ll do if its attempts to go through a series of right-wing courts to retain FDA approval are unsuccessful.
Health and Human Services Secretary Xavier Beccera sidestepped CNN host Dana Bash’s prodding about potentially ignoring the ruling Sunday, emphasizing that, should the 5th Circuit Court of Appeals or the Supreme Court uphold Kacsmaryk’s decision, it would open the floodgates to lawsuits challenging the FDA’s judgment on the safety and efficacy of drugs across the board.
“First and foremost, when you turn upside down the entire FDA approval process, you’re not talking about just mifepristone,” he said. “You’re talking about every kind of drug. You’re talking about our vaccines. You’re talking about insulin. You’re talking about the new Alzheimer’s drugs that may come on.”
He came closest to the question when Bash asked whether he was “taking off the table” directing the FDA to ignore a ban.
“Everything is on the table,” he said. “The President said that way back when the Dobbs decision came out. Every option is on the table.”
Though as the White House told TPM Monday, directing the agency to ignore the rulings is apparently not.
On Monday, Beccera added during an appearance in Atlanta that the administration will be “vigorous in defending the Food and Drug Administration’s approval process.”
But part of the reason Wyden and others have been pushing the nonenforcement idea is that only hostile courts lie ahead for the administration: the notoriously right-wing 5th Circuit and the Supreme Court. This is by design, and of a piece with the judge shopping practice right-wing litigants have perfected under Biden’s presidency.
The administration has appealed Kacsmaryk’s ruling to the 5th Circuit; it’ll likely appeal to the Supreme Court if the appeals court either upholds the ruling, or declines to put it on pause while the case works its way through the upper courts.
The administration has a few days to strategize: Kacsmaryk put his ruling on a one-week delay to give the DOJ time to appeal. There’s also the contradictory ruling out of Washington to consider, ordering the administration to keep mifepristone available for several states. Some have urged the administration to cite that ruling and declare its hands tied on the question of whether to keep the drug on the market. Administration lawyers in that case asked for further guidance from Eastern District of Washington Judge Thomas Rice Monday.
Major abortion providers made it clear that at least for the duration of Kacsmaryk’s delay, nothing has changed.
“Like we said before — we follow directives from the FDA, and not anti-abortion judges in Texas who lack any formal medical training,” Whole Woman’s Health said in a tweet. “Whole Woman’s Health will continue to dispense Mife in our clinics and our Pills by Mail Program for the next week as we monitor both decisions.”
“Nothing has changed yet: medication abortions with mifepristone are still available,” Trust Women tweeted. “Now, as ever, it’s critically important to support your local abortion funds and clinics, and contact your legislators and demand that mife remains legal health care.”
Many Republicans, including Sens. Ted Cruz (R-TX) and John Cornyn (R-TX), are criticizing the Democrats’ calls for the FDA to use its enforcement discretion as lawless. And at least one Republican is making noise about coming for the FDA, should the administration reverse itself on ignoring the rulings.
“As an appropriator on the House Republican side, I look at it, the House Republicans have the power of the purse,” Rep. Tony Gonzales (R-TX) said Sunday on CNN. “And if the administration wants to not lead this ruling — not live up to this ruling, then we’re going to have a problem. And it may come a point where House Republicans on the appropriation side have to defund FDA programs that don’t make sense.”
Sen. Chuck Schumer (D-NY) quickly jumped on the suggestion Monday.
“We’re not defunding the FDA,” he tweeted. “Republicans care more about enacting a national abortion ban than they do about making sure everyone has safe food to eat.”