DOJ asks judges to make clear court docket rulings

In this 2018 photo, mifepristone and misoprostol pills are provided at a Carafem medical abortion clinic in Skokie, Illinois.

Erin Hooley | Tribune News Service | Getty Images

The Biden administration on Monday asked a federal judge to clarify how to respond to his order to keep the abortion pill mifepristone on the market in more than a dozen states in the event another judge contradictingly rules the Food and Drug’s approval Administration suspending medications will take effect later this week.

US District Judge Thomas Rice of the US Eastern District of Washington on Friday barred the FDA from “changing the status quo and rights regarding the availability of mifepristone” in the 17 states and the District of Columbia that had sued to order to keep the drug in the local market.

Rice’s decision came just 20 minutes after US District Judge Matthew Kacsmaryk of the US Northern District of Texas suspended the FDA’s statewide approval of mifepristone. The Justice Department on Monday asked the Fifth Circuit Court of Appeals to prevent the effectiveness of Kacsmaryk’s decision while the lawsuit unfolds. Government lawyers said they could ask the Supreme Court to intervene.

The Justice Department asked Rice to clarify his obligations regarding the legality of mifepristone by Friday. Kacsmaryk’s decision will go into effect at midnight CT Saturday if the 5th Circuit does not block the Texas order.

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“If the Texas District Court order goes into effect, the order would — on its own merit and without further action by the FDA — nullify the effectiveness of the FDA’s prior approvals for mifepristone nationwide,” Justice Department attorneys told Rice in one court record.

“The outcome of this order appears to be in material conflict with the order of this court prohibiting the FDA from altering the status quo and rights regarding the availability of mifepristone in plaintiffs’ states,” DOJ attorneys said.

Rice’s decision applies to Arizona, Colorado, Connecticut, Delaware, Illinois, Michigan, Nevada, New Mexico, Oregon, Rhode Island, Vermont, Hawaii, Maine, Maryland, Minnesota, Pennsylvania, Washington State and DC

In a statement Friday, the Democratic Attorney General, who filed the suit in Washington state, said Rice’s decision “will secure access to mifepristone for millions of Americans.” But they also said “there are still unknown elements and implications” of Washington State and Texas’ dueling decisions.

Democratic lawmakers like Oregon Sen. Ron Wyden said Kacsmaryk’s ruling had no legal basis and urged the FDA to simply ignore it.

Asked by CNN on Sunday whether he would order the FDA to ignore the judge’s order, US Health Secretary Xavier Becerra said, “Everything is on the table.”