Biden administration says Texas judge ‘abused’ discretion in abortion pill ban
Kaelan Deese
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The Biden administration on Wednesday called on a federal appeals court to overrule a Texas-based judge’s order that would effectively ban a common abortion drug, arguing he “abused” his discretion by granting preliminary relief earlier this month.
In a filing to the U.S. Court of Appeals for the 5th Circuit, the Justice Department called an April 7 order by U.S. District Judge Matthew Kacsmaryk “abrupt and profoundly disruptive.” The agency argued the abortion drug mifepristone’s safety is “amply supported by a record developed over decades of safe and effective use” globally.
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The appeals court will hear May 17 oral arguments over the dispute after the Supreme Court last week put Kacsmaryk’s order on hold. The Supreme Court’s action allowed broad access to the drug while litigation proceeds at the 5th Circuit level.
The DOJ added that Kacsmaryk, a former Christian legal activist, made an unprecedented decision when he ruled in favor of anti-abortion physician plaintiffs who argued the Food and Drug Administration’s 2000 approval of the drug was rushed and unsafe.
“The district court’s order would thwart FDA’s scientific judgment and profoundly harm women who rely on mifepristone as an alternative to more burdensome and invasive surgical abortions,” DOJ attorneys wrote.
“When a district court applies incorrect legal principles, it abuses its discretion,” the 86-page filing reads.
The Biden administration added that the plaintiff organizations representing physicians lack any legal standing to sue because they are not actually harmed by mifepristone’s approval.
“They neither take nor prescribe mifepristone, and FDA’s approval of the drug does not require them to do or refrain from doing anything. Yet the district court held that the associations have standing because some of their members might be asked to treat women who are prescribed mifepristone by other providers and who then suffer an exceedingly rare serious adverse event,” the DOJ wrote, responding to one of the standing arguments made by the anti-abortion groups.
A panel of three 5th Circuit judges will decide whether to uphold Kacsmaryk’s order on May 17. With 12 of its 16 active judges appointed by Republican presidents, the 5th Circuit is considered one of the most conservative.
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While the appeals panel on April 12 acknowledged one of the plaintiff’s three legal theories had been disavowed by the Supreme Court in other abortion cases, it did not dismiss all of their claims in a ruling earlier this month.
Shortly after Kacsmaryk’s order, another federal judge in Spokane, Washington, issued an order blocking the FDA from imposing any new restrictions on mifepristone in 17 states. That order remains in effect and would create a conflict with any future order banning or restricting the drug, which would tee up the matter for further consideration by the 6-3 Republican-appointed majority on the Supreme Court.