On April 7, U.S. District Judge Kacsmaryk, sitting in the Northern District of Texas, issued a ruling saying the FDA was wrong to approve of the so-called ‘abortion pill,’ (a.k.a. Mifepristone or RU-486), effectively requiring the FDA to ban the drug nationwide. What made things extra complicated for the FDA is that within seconds of that ruling, U.S. District Judge Thomas Rice of the Eastern District of Washington (state) issued a ruling prohibiting the FDA from interfering with the availability of the abortion pill in specific states. So, in two different orders, the FDA was told to ban it in all of America, but allow it in part of America, literally within seconds.
Regardless of what one feels about the abortion pill, we shouldn’t have these kinds of contradictory signals being sent to the FDA.
Of course, the Biden administration liked the Rice ruling and hated the Kacsmaryk ruling, so they quickly sought a stay of the Kacsmaryk ruling in the Fifth Circuit (which oversees Kacsmaryk) and they had partial success:
BREAKING: The Fifth Circuit stays Kacsmaryk's order ONLY as to the 2000 approval of mifepristone, not as to the 2016 REMS changes or subsequent changes, including the 2023 ending of the in-person dispensing requirement. https://t.co/d3rtxS3WAR pic.twitter.com/gQ2eg38wu4
— Chris “Subscribe to Law Dork!” Geidner (@chrisgeidner) April 13, 2023
Mr. Geidner obviously is unsympathetic to most abortion restrictions, but he is professional enough to separate fact from his opinion, and summarizes where the Fifth Circuit landed very well:
To start, although styled as per curiam, this is from Judges Engelhardt (Trump) and Oldham (Trump).
Judge Haynes (George W. Bush) would have granted an administrative stay, and deferred to the argument panel. pic.twitter.com/67u3fYZdhI
— Chris “Subscribe to Law Dork!” Geidner (@chrisgeidner) April 13, 2023
To start, although styled as per curiam, this is from Judges Engelhardt (Trump) and Oldham (Trump).
Judge Haynes (George W. Bush) would have granted an administrative stay, and deferred to the argument panel. pic.twitter.com/67u3fYZdhI
— Chris “Subscribe to Law Dork!” Geidner (@chrisgeidner) April 13, 2023
Kacsmaryk's ruling is NOT stayed as to the post-2000 changes — including increasing the gestational age, decreasing the number of in-person visits, and ultimately ending the in-person dispensing requirements. Those FDA changes are stayed, again, per the 5th Circuit. pic.twitter.com/GpMvvx1RxZ
— Chris “Subscribe to Law Dork!” Geidner (@chrisgeidner) April 13, 2023
That part about requiring in-person visits is crucial because plainly the Biden administration was using the abortion pill as a way of getting around any abortion restrictions they didn’t like. Forcing people to actually come in for a visit makes it harder to duck those kinds of restrictions.
Under the 5th Circuit's ruling tonight, the original 2000 approval of mifepristone will remain as of April 15, as will the 2000 restrictions on its use. All subsequent FDA changes will not be approved as of then.
NOTE: This will be affected by any appeal & the WA Dem AGs case.
— Chris “Subscribe to Law Dork!” Geidner (@chrisgeidner) April 13, 2023
Here's my write-up of tonight's Fifth Circuit ruling, waiting in your inbox if you've subscribed to Law Dork: https://t.co/5qqrZAQHn8
— Chris “Subscribe to Law Dork!” Geidner (@chrisgeidner) April 13, 2023
And if you want to get even nerdier on the law (and we are just nerdy enough to enjoy this), Jonathan Adler is here for you:
Fifth Circuit's unpublished order partially blocking district court order suspending FDA approval of abortion pill is vastly better than the lower court opinion, but still has some problems. https://t.co/662Nvw4Y0k
— Jonathan H. Adler (@jadler1969) April 13, 2023
Panel recognizes folly of equitable tolling and reopener doctrine accepted below. Standing argument is narrower but still problematic. Hope to blog later.
— Jonathan H. Adler (@jadler1969) April 13, 2023
And to get even nerdier, this liberal account noticed this snag for those who want to legalize the abortion pill:
In the Fifth Circuit, an extraordinary revival for the Comstock Act, an antique anti-vice law passed under the Ulysses S. Grant admin that had essentially lain dormant during the fifty year stretch when the Supreme Court recognized a right to privacy. https://t.co/STyjY6ft09 pic.twitter.com/s4WWrXaZ6p
— southpaw (@nycsouthpaw) April 13, 2023
The Comstock Act was suspended for years when abortion was asserted to be a constitutional right under Roe v. Wade and the cases that followed it. But Roe has been overturned, and the law is still apparently on the books. You often hear people say the Supreme Court has ‘struck down’ a particular law because it is unconstitutional, but that term is misleading. A law that has been struck down remains, but it cannot be enforced. And if the Supreme Court decides it was wrong on the constitutional issue, the law can be enforced again.
(And for bonus points, think about what this Grant-era legislation means for the intent of the founders of the Fourteenth Amendment on the subject of abortion.)
Wanna get even NERDIER?
This thread highlights some good tidbits: https://t.co/1V1dWXOLRB
— Jonathan H. Adler (@jadler1969) April 13, 2023
Moving on, if that isn’t enough confusion, Judge Rice issued an order basically telling the FDA to ignore the Fifth Circuit ruling, according to the article cited here:
New Orleans-based Fifth Circuit Court of Appeals put on hold part of last Friday’s order by the US District Judge Matthew Kacsmaryk in Amarillo, Texas, but its order still conflicts with that of District Judge Thomas Rice in the Ninth Circuit https://t.co/AJaQXTQH0B
— 🏳️🌈 Chuck Hamilton (he/him/his) 🏴☠️ (@natty4bumpo) April 13, 2023
However, the Biden administration and the drug company involved weren’t totally satisfied with the Fifth Circuit order, either, so they went to the Supreme Court and sought to stay even those limitations.
New: The Biden administration has requested an immediate administrative stay of Judge Kacsmaryk's ruling on the abortion pill mifepristonehttps://t.co/Ii1R5E1Bei
— SCOTUSblog (@SCOTUSblog) April 14, 2023
Drug manufacturers filled an emergency application to put the ruling by U.S. District Judge Matthew Kacsmaryk in the abortion pill case on hold pending appeal.https://t.co/XLAWuO5bQd
— SCOTUSblog (@SCOTUSblog) April 14, 2023
And Justice Alito, who oversees the Fifth Circuit, granted what is called an administrative stay, on Friday. That’s basically a very short stay that freezes things until the entire Supreme Court can decide whether to grant a longer stay. It’s the judicial equivalent of the court saying, ‘Hold on, we’re thinking.’ It was set to expire today, but then an extension was granted until midnight on Friday:
New: The Supreme Court extends the administrative stay in the abortion pill dispute. New restrictions remain on hold until 11:59 p.m. on Friday. Here's that order: https://t.co/xrbcoB3mrZ
— SCOTUSblog (@SCOTUSblog) April 19, 2023
Why? One possibility is that they are actually still deliberating the issue. But Gabriel Malor offers another theory.
Someone's writing a dissent… https://t.co/JQtQo3wVEH
— Gabriel Malor (@gabrielmalor) April 19, 2023
That is plausible, too. We will probably have a better sense of what is going on, on Friday. However, it shouldn’t surprise us if the Supreme Court engages in some kind of intervention to at least fix the contradiction in these rulings.
Finally, one reasonable question is ‘How can courts avoid the possibility of two contradictory rulings within seconds of each other?’ Based on our experience, if any of the parties, in either case, were aware of the other case, they should have brought it to the attention of each court. Then one judge is likely to call the other and try to work things out so there is no contradiction.
We have no idea if any of that was done or not done here, but that is ideal.
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