The Justice Department plans to ask the Supreme Court to intervene after an appeals court froze part of a Texas judge’s order that would have suspended the government authorization of abortion drug mifepristone.
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The U.S. Court of Appeals for the 5th Circuit only partially granted the DOJ and the drug manufacturer’s request to put U.S. District Judge Matthew Kacsmaryk’s ruling on hold, with access to the drug still limited. Attorney General Merrick Garland issued a statement condemning the appeals court decision.
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“The Justice Department strongly disagrees with the Fifth Circuit’s decision in Alliance for Hippocratic Medicine v. FDA to deny in part our request for a stay pending appeal,” Garland said. “We will be seeking emergency relief from the Supreme Court to defend the FDA’s scientific judgment and protect Americans’ access to safe and effective reproductive care.”
Under the appeals court’s partial stay of Kacsmaryk’s ruling, mifepristone would remain an option for patients to consider but could not be prescribed after the seventh week of pregnancy and cannot be sent by mail.
The Biden administration is likely to ask the Supreme Court to keep mifepristone fully available while an appeal proceeds.
Mifepristone was approved by the Food and Drug Administration nearly 23 years ago, but its approval has recently come under challenge by abortion opponents who say it is unsafe. Kacsmaryk’s lower court ruling held that the FDA failed to evaluate the psychological or long-term medical consequences of the pill.
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The emergency filing would go to Justice Samuel Alito, who is tasked to handle emergency matters from the New Orleans-based appeals court.
Alito, who wrote the 2022 opinion that allowed states to impose laws severely restricting abortions, has the ability to refer the matter to the full nine-member court.
