Matthew Kacsmaryk, deputy counsel for the First Liberty Institute, answers questions during his nomination hearing by the U.S. Senate Committee on the Judiciary in Washington, D.C., on Dec. 13, 2017, in a still image from video.
Attorneys general for nearly half of U.S. states in a new court filing warn that a federal judge’s decision to suspend the Food and Drug Administration’s 23-year-old approval of mifepristone across the country “presents devastating risks to millions of people,” including those in states where abortion remains legal.
The attorneys general in their filing Monday called on the U.S. 5th Circuit Court of Appeals to keep mifepristone on the market as litigation over the legality of the abortion pill plays out.
Judge Matthew Kacsmaryk of the U.S. District Court in Amarillo, Texas, on Friday effectively revoked the FDA approval of mifepristone.
But he put his decision on hold for one week to give the Biden administration time to appeal.
Kacsmaryk’s ruling will take effect at 12 a.m. CT on Saturday if the 5th Circuit does not halt it.
In their filing Monday, the Democratic attorneys general for 23 states and the District of Columbia condemned Kacsmaryk’s ruling as “legally erroneous” and warned it would undermine the FDA’s approval process.
The attorneys general argued that Kacsmaryk’s order would “eviscerate the sovereign decisions” made by the states to protect access to abortion in the wake of the Supreme Court’s decision last summer to overturn Roe v. Wade, the case that since 1973 had said there was a federal constitutional right to abortion.
Mifepristone, used in combination with another drug, misoprostol, is the most common method of terminating a pregnancy in the U.S., accounting for about half of all abortions.
The attorneys general cited that fact in their brief.
“Because medication abortion is the most common method used to terminate a pregnancy during the first trimester, curtailing access to this method will result in more abortions taking place later in pregnancy, further increasing costs and medical risks,” the attorneys general wrote.
The Department of Justice on Monday asked the 5th Circuit to rule on its request to halt Kacsmaryk’s decision by noon Thursday “to enable the government to seek relief in the Supreme Court if necessary.”
Danco Laboratories, the distributor of mifepristone, also has asked the appeals court to pause Kacsmaryk’s decision for at least 14 days so the company has the opportunity to “seek emergency relief from the Supreme Court.”
There is significant uncertainty about how Kacsmaryk’s decision will affect the legality of mifepristone if his decision is not blocked by the 5th Circuit 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 “altering the status quo and rights as it relates to the availability of mifepristone” in the District of Columbia and 17 states that had sued to keep the medication on the market in their jurisdictions.
The Department of Justice has asked Rice to clarify how the FDA should respond to his ruling if Kacsmaryk’s decision goes into effect, noting that the Washington state ruling appears to be in “significant tension” with the decision by Kacsmaryk.
The DOJ asked Rice to respond to that query by Friday.
Some 53% of adults in the U.S. believe medication abortion should be legal in their state, while about 22% say it should be illegal and 24% are unsure, according to a poll published by the Pew Research Center on Tuesday. The poll was conducted before Kacsmaryk’s ruling.
Kacsmaryk’s decision does not affect the availability of misoprostol, which the World Health Organization recommends as a standalone abortion drug.
States such as California are stockpiling misoprostol in the event that Kacsmaryk’s decision goes into effect.
In addition to the District of Columbia, the states that filed Monday’s brief to the 5th Circuit are Arizona, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, New Mexico, New York, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and Wisconsin.