Courtroom ruling doesn’t have an effect on 17 states

A US district judge in Washington state said Thursday access to the abortion pill mifepristone was unaffected by a federal appeals court ruling that imposed restrictions on the drug this week.

Judge Thomas Rice of the state’s US Eastern District last Friday ordered the Food and Drug Administration to gain access to mifepristone in 17 states and the District of Columbia, which requested protection of the drug in those jurisdictions.

Rice reiterated in a court order Thursday that the FDA cannot reverse access to the drug, despite a decision this week by the US 5th Circuit Court of Appeals that imposed restrictions on how the drug is dispensed and used by patients.

“No judge in Texas or the 5th Circuit can overrule a decision of a federal judge in Washington state,” Washington State Attorney General Bob Ferguson told CNBC on Thursday. Ferguson led the lawsuit to protect access in the 17 states and the district.

Rice’s Thursday order underscores the chaotic legal landscape that has emerged after dueling court decisions over the drug’s legal status. The U.S. Supreme Court appears poised to rule on the future of mifepristone — and possibly soon.

Rice’s order applies to Arizona, Colorado, Connecticut, Delaware, Illinois, Michigan, Nevada, New Mexico, Oregon, Rhode Island, Vermont, Hawaii, Maine, Maryland, Minnesota, Pennsylvania, Washington and the District of Columbia.

Rice’s order maintains FDA’s current regulatory framework in those jurisdictions. These include sending the abortion pill by mail, allowing pharmacies to dispense it if they are certified to do so, and administering mifepristone up to 10 weeks’ gestation.

“We have a crystal clear ruling, and we expect the FDA will respect it,” Ferguson said earlier Thursday.

Rice’s decision last Friday came just 20 minutes after US District Judge Matthew Kacsmaryk of the US Northern District of Texas unilaterally stayed the FDA’s more than two-decade-old approval of mifepristone and all subsequent regulatory actions the agency has taken since has taken.

The Justice Department appealed Kacsmaryk’s decision to the 5th Circuit Court of Appeals on Monday.

A three-judge panel Wednesday voted 2-1 to block Kacsmaryk’s attempt to suspend the FDA’s approval of mifepristone. But it also imposed tighter restrictions on the drug, limiting access.

Judges Kurt Engelhardt and Andrew Oldham, appointed by former President Donald Trump, voted to temporarily block mail delivery of the abortion pill and reintroduce visits to the doctor to obtain the drug. The decision also shortened the period that mifepristone can be administered down to the seventh week of pregnancy. The 5th circle will hold oral hearings in the case at the earliest possible date.

The DOJ earlier this week asked Rice to clarify what legal obligations the government has under his order by Friday, as it sees “significant” tensions with Kacsmaryk’s decision. Rice said Thursday that Kacsmaryk’s order and the 5th Circuit Court ruling will not affect access to mifepristone in the 17 states and DC

“I don’t see a world where the FDA decides for Washington and the states that have joined our coalition that they are going to withdraw access in the way the 5th Circuit envisions,” Ferguson said earlier Thursday.

The Biden administration is appealing the 5th Circuit Court decision to the Supreme Court. US Attorney General Merrick Garland said Thursday the DOJ “strongly disagrees” with the appeals court and will seek emergency relief from the Supreme Court to “protect Americans’ access to safe and effective reproductive care.”

Glenn Cohen, a former DOJ attorney, said the FDA had an even stronger case for the court to step in after Rice upheld its order to maintain access in response to the government’s request for clarification.

“The need to go to the Supreme Court in the meantime is becoming more compelling — and the FDA has a stronger case for a judicial review since two courts are telling it to do conflicting things,” said Cohen, a health law expert Harvard Law School CNBC in an email ahead of Rice’s clarification on Thursday.