Assistant Attorney for First Liberty Institute Matthew Kacsmaryk answers questions during his nomination hearing by the US Senate Judiciary Committee in Washington, DC, December 13, 2017, in a still from video.
Attorneys general of nearly half of U.S. states warn in a new court filing that a federal judge’s decision to suspend the 23-year-old Food and Drug Administration approval of mifepristone across the country “poses devastating risks to millions of people.” including those in states where abortion remains legal.
Attorneys general, in their filing filed Monday, asked the U.S. Fifth Circuit Court of Appeals to keep mifepristone on the market while a legal battle over the legality of the abortion pill unfolded.
Judge Matthew Kacsmaryk of the US District Court in Amarillo, Texas, effectively revoked the FDA approval of mifepristone on Friday.
But he put his decision on hold for a week to give the Biden administration time to appeal.
Kacsmaryk’s decision will go into effect at 12:00 a.m. CT Saturday if the 5th Circuit does not stop it.
In their filing Monday, the Attorneys General for 23 states and the District of Columbia condemned Kacsmaryk’s ruling as “legally flawed” and warned it would undermine the FDA’s approval process.
Attorneys general argued that Kacsmaryk’s order violated “states’ sovereign decisions” to protect access to abortion following last summer’s Supreme Court decision, Roe v federal constitutional rights to abortion.
Mifepristone, used in combination with another drug, misoprostol, is the most common method of terminating a pregnancy in the United States, accounting for about half of all abortions.
The Attorneys General cited this fact in their brief.
“Since medical abortion is the most common method used to terminate a pregnancy in the first trimester, limiting access to this method will result in more abortions occurring later in pregnancy, further increasing costs and medical risks,” wrote the Attorney General.
The Justice Department on Monday asked the 5th Circuit to rule on its request to halt Kacsmaryk’s decision by Thursday noon “to allow the government to seek redress from the Supreme Court if necessary.”
Danco Laboratories, the distributor of mifepristone, has also asked the Court of Appeals to stay Kacsmaryk’s decision for at least 14 days to allow the company to “seek emergency relief from the Supreme Court.”
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There is significant uncertainty as to how Kacsmaryk’s decision will affect the legality of mifepristone unless his decision is blocked by the 5th Circuit Court or the Supreme Court.
Just 20 minutes after Kacsymaryk issued his ruling Friday, another federal judge, Thomas Rice of the Eastern District of Washington, barred the FDA from “the status quo and rights regarding the availability of mifepristone” in the District of Columbia and 17 to change states that had sued to keep the drug on the market in their jurisdictions.
The Justice Department has asked Rice to clarify how the FDA should respond to its decision if Kacsmaryk’s decision goes into effect, noting that Washington State’s decision appears to have “significant tension” with Kacsmaryk’s decision.
The DOJ requested Rice to respond to that request by Friday.
Kacsmaryk’s decision does not affect the availability of misoprostol, which the World Health Organization recommends as a standalone abortion drug.
States like California are stockpiling misoprostol in case Kacsmaryk’s decision goes into effect.
In addition to the District of Columbia, the states that submitted Monday’s brief to the 5th Circuit are Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey and New Mexico , New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and Wisconsin.