The future of medication abortion in the United States remains up in the air after a federal judge heard arguments Wednesday in a suit challenging the Food and Drug Administration’s long-standing approval of mifepristone.
U.S. District Judge Matthew Kacsmaryk said he would rule “as soon as possible” on the challenge brought by the Alliance Defending Freedom, a conservative, anti-abortion law firm.
ADF is asking Kacsmaryk to suspend — and ultimately withdraw — the FDA’s approval of the medication, which would have nationwide implications, especially in states where abortion remains legal. In the hearing, a lawyer for ADF conceded that this would be unprecedented, but argued that the court had the authority to intervene to prevent harm.
Lawyers for the Department of Justice and Danco Laboratories, the pharmaceutical company that produces generic mifepristone, argued that the lawsuit is meritless.
Granting a preliminary injunction would be “depriving patients and doctors of a safe and effective drug,” argued Julie Straus Harris, with the DOJ.
Since it was initially approved in 2000, mifepristone has been found to be overwhelmingly safe and effective for terminating pregnancies. Citing that body of evidence, the FDA has recently relaxed restrictions on the medication, which is used in the majority of the abortions in the United States.
In the suit, ADF is representing anti-abortion medical organizations and doctors who argue they have been harmed by having to treat patients who have experienced adverse effects from the medications — and that they anticipate increased harm as a result of these loosened restrictions.
They also argue the drug was initially approved improperly under an FDA regulation that fast-tracks drugs that treat serious illnesses.
“Pregnancy is not an illness,” said Erik Baptist, a lawyer for ADF, in Wednesday’s hearing. “Mifepristone doesn’t treat anything.”
Kacsmaryk, appearing to give weight to that argument, listed off all the drugs that were approved under this regulation before mifepristone, most of which treat HIV and cancer. Separately, he summarized Baptist’s argument as asking the court to “deem one of these not like the others.”
The hearing, which ran more than four hours in Kacsmaryk’s Amarillo courtroom, covered a wide range of arguments. But the central question before Kacsmaryk is not as much about abortion as it is about administrative procedure — and whether the plaintiffs have any right to bring this lawsuit at all.
The DOJ claims that the statute of limitations on the plaintiffs’ complaints has expired and they have not satisfied the requirements to reopen the FDA’s approval of mifepristone.
Mifepristone was approved by the FDA in 2000. Two years later, anti-abortion groups filed a citizen petition asking the FDA to reconsider. The FDA did not respond until 2016, when it rejected the question — on the same day that it released new guidance loosening restrictions on the drug.
Erin Morrow Hawley, an attorney for ADF, said this “agency gamesmanship” — as well as changes to the drug’s dispensing requirements in 2016 and 2021 — gives the court an opening to reconsider the approval.
The DOJ countered that there is a process to challenge delays, which the plaintiffs did not undertake, nor have they explained the gap between that 2016 petition rejection and the 2022 lawsuit filing. Lawyers for the government also argued that the doctors and medical associations who brought this lawsuit have not demonstrated sufficient harm.
In declarations, these medical providers laid out cases where they had to treat patients experiencing adverse effects from medication abortion.
Courts have long recognized that abortion providers have standing to bring suits challenging restrictions on behalf of their patients. ADF argued that this should similarly extend to doctors who oppose abortion.
Straus Harris, representing the FDA, questioned that argument, pointing out that abortion providers and their patients are pursuing the same medical procedure. In this lawsuit, doctors and patients are “diametrically opposed,” in that the doctors want to block medical care their patients may have otherwise sought out.
Kacsmaryk, in questioning the DOJ, raised an argument from the U.S. Supreme Court ruling in June Medical Services v. Russo, a 2020 case that knocked down a Louisiana law restricting abortion access. But he cited a dissent from Justice Samuel Alito that argued abortion providers do not have close relationships with their patients and thus don’t have standing.
There was repeated discussion of an amicus brief filed by the attorney general of Mississippi and signed by the attorneys general of 21 other states, including Texas. That brief argued that the continued approval of mifepristone threatens states’ ability to protect their citizens, and “forces States to devote scarce resources to investigating and prosecuting violations of their laws.”
Baptist, the plaintiffs’ attorney agreed, arguing that revoking the FDA’s approval of mifepristone would restore proper power to the states to create and enforce abortion laws, noting that the use of medication abortion “knows no bounds.”
Straus Harris countered that the FDA’s approval does not obligate or require anyone to prescribe or take the medication, and thus does not set state policy; instead, she argued, it is the plaintiffs who are overstepping by trying to set national policy.
And despite the sea change in the last nine months, Straus Harris said all 50 states still allow abortion in some circumstances.
“Every state has an allowance under which mifepristone lawfully could be used,” she said, noting state laws that allow abortion to save the life of the pregnant patient, in cases of rape or incest, or due to lethal fetal anomalies. “An injunction would interfere with every state.”
Before joining the federal bench in 2019, Kacsmaryk worked on anti-abortion causes as deputy general counsel for First Liberty, a religious liberty law firm in Plano. As the only federal judge in Amarillo, he is automatically assigned 95% of the cases filed in that division.
He initially tried to conceal this hearing, keeping it off the docket after he scheduled it during a status hearing on Friday. According to a transcript of the hearing, he initially planned to wait until Tuesday night to announce it publicly, citing security concerns. After The Washington Post reported on the hearing over the weekend, it was docketed Monday afternoon.
At the conclusion of the hearing, Kacsmaryk thanked everyone who “endured the necessary planes, trains and automobiles” it took to get to Amarillo. And he applauded the “excellent, superb” arguments from both sides, saying it was a “smorgasbord of appellate-grade work.”
It will have to be: Whatever Kacsmaryk rules, it’s all but guaranteed that this case will end up before the 5th U.S. Circuit Court of Appeals in New Orleans.
This article originally appeared in The Texas Tribune at https://www.texastribune.org/2023/03/15/fda-abortion-drug-federal-court/.
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