DOJ asks appeals court for emergency stay of abortion pill ruling

ByAlexander Mallin ABCNews logo
Tuesday, April 11, 2023

The Justice Department on Monday filed an emergency stay motion with the 5th Circuit Court of Appeals seeking to block Friday's order from a federal judge in Texas striking down the FDA's approval of the widely-used abortion medication drug mifepristone.

"Rather than preserving the status quo, as preliminary relief is meant to do, the district court upended decades of reliance by blocking FDA's approval of mifepristone and depriving patients of access to this safe and effective treatment, based on the court's own misguided assessment of the drug's safety," the DOJ said.

"The district court took this extraordinary step despite the fact that plaintiffs did not seek relief for many years after mifepristone's original approval, waited nearly a year after the most recent FDA actions they seek to challenge, and then asked the court to defer any relief until after a final resolution of the case," the motion reads.

U.S. District Judge Matthew Kacsmaryk, a Trump appointee, ruled late Friday to suspend FDA approval of mifepristone -- the first time a federal judge has blocked a drug approved for humans despite the FDA's position. Kacsmaryk put the order on hold for seven days to give the Justice Department time to appeal.

The DOJ said the district court's unprecedented order should be stayed pending appeal. It argued the plaintiffs lack standing to challenge the FDA's approval of a drug they neither take nor prescribe; their challenge to FDA actions dating back to 2000 is manifestly untimely; and they have provided no basis for second-guessing FDA's scientific judgment.

"Those defects foreclose plaintiffs' claims, and the court flouted fundamental principles of Article III and administrative law in holding otherwise. Indeed, no precedent, from any court, endorses plaintiffs' standing, timeliness, or merits theories," the DOJ said.

"The court's sweeping nationwide relief was especially unwarranted given the balance of harms: If allowed to take effect, the court's order would thwart FDA's scientific judgment and severely harm women, particularly those for whom mifepristone is a medical or practical necessity. This harm would be felt throughout the country, given that mifepristone has lawful uses in every State. The order would undermine healthcare systems and the reliance interests of businesses and medical providers. In contrast, plaintiffs present no evidence that they will be injured at all, much less irreparably harmed, by maintaining the status quo they left unchallenged for years."

"The district court granted a seven-day administrative stay. This Court should extend the administrative stay pending resolution of stay proceedings in this Court and, if necessary, the Supreme Court. The Court should then stay the district court's order pending appeal," the DOJ told the appeals court. "The government requests that this Court enter an administrative stay or grant a stay pending appeal by noon on April 13, to enable the government to seek relief in the Supreme Court if necessary.

Future access to mifepristone -- on the market since 2000 and used in more than half ofabortions in the U.S. -- also hangs in limbo after contradictory rulings late Friday by Kacsmaryk and a second federal judge in Washington state.

Within hours of Kacsmaryk's order Friday, U.S. District Judge Thomas Rice, an Obama appointee, ruled that mifepristone should continue to be available in 17 states and the District of Columbia. Those Democratic-led states had sued in anticipation of a ruling limiting access.

On Monday, the Justice Department sought clarity from Rice on his order barring the FDA from "altering the status quo" as it relates to mifepristone.

"The result of that order appears to be in significant tension with this Court's order prohibiting FDA from "altering the status quo and rights as it relates to the availability of Mifepristone in Plaintiff States," DOJ said in a motion filed with Rice. "The Court did not address the interaction between the two orders, presumably because they were issued less than 20 minutes apart."

DOJ asked Rice to clarify what its obligations should be in complying with his order given the "unusual circumstances" of the dueling injunctions.

When there's such a conflict between lower courts -- especially appeals courts -- the Supreme Court typically steps in.

"Because they're at a similar level, the heads will butt until they get to a higher court," said ABC News legal contributor Brian Buckmire, when asked about the conflicting cases on "GMA3" Monday. "It could be a Supreme Court argument deciding this all."

"A lot of people are predicting already that [Justice Brett] Kavanaugh may be the person to look to, because he was the one that said, yes, we may stop short of Roe v. Wade, but we will allow the states to decide themselves," Buckmire said, referring to Kavanaugh's concurring opinion in the Dobbs case that overruled Supreme Court precedent finding a constitutional right to abortion.

The 5th Circuit, seen as one of the most conservative, is expected to weigh in before the ruling takes effect on Friday.

"In other words, Kacsmaryk's ruling will go into effect at midnight (CDT) on Saturday, April 15 unless either the Fifth Circuit or the Supreme Court freezes it in the interim," wrote Steve Vladeck, a constitutional law professor at the University of Texas.

"If the Fifth Circuit grants either form of relief before the end of the day Friday, then this probably stays out of the Supreme Court for now; it seems more than a little unlikely that the plaintiffs in the Amarillo case would try to ask the Supreme Court to vacate such a stay," he said.

Until then, experts have speculated on what the high court might decide.

"It's easy to imagine that there are four votes to, at the very least, put the ruling on pause for however long it takes for the case to make its way through the lower courts (including Chief Justice Roberts and the three dissenters in Dobbs). The question to which we might have an answer by the end of the week, an answer that will have implications far beyond the specific (but massively important) future of mifepristone, is whether there are five," Vladeck wrote.

ABC News' Anne Flaherty contributed to this report.

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