Dueling Abortion Medication Rulings Put Access in Question

Within a hour of each other two federal judges issued conflicting rulings about medication abortion on Friday, Apr. 7, 2023.

In the first, US District Judge Matthew Kacsmaryk in Amarillo, Texas, issued a preliminary injunction (a ruling issued before the case is heard) that the Food and Drug Administration’s 2000 approval of mifepristone was a mistake and ordered the FDA to remove the drug from the market. He said the FDA failed to consider “the intense psychological trauma and post-traumatic stress women often experience from chemical abortion.”

Kacsmaryk stayed the ruling so the federal government could appeal the ruling but stated, “‘individual justice’ and ‘irreparable injury’ analysis also arguably applies to the unborn humans extinguished by mifepristone — especially in the post-Dobbs era.” 

Legal experts believe the ruling to be the first time a judge has ordered the FDA to remove a drug from the market over the FDA’s objections.

Meanwhile, within an hour of Kacsmaryk’s ruling, US District Judge Thomas Owen Rice in Spokane, Washington, issued a preliminary injunction that the FDA cannot “alter… the status quo and rights as it relates to the availability of Mifepristone,” meaning the FDA must keep the drug on the market in D.C. and the 17 plaintiff states. 

By late Friday, Apr. 7, the Department of Justice had appealed Kacsmaryk’s ruling. Attorney General Merrick Garland stated, “Today’s decision overturns the FDA’s expert judgment, rendered over two decades ago, that mifepristone is safe and effective. The Department will continue to defend the FDA’s decision.”

The FDA and Danco Labs, manufacturer of the brand name version of mifepristone (Mifeprex), have also joined in appealing the Kacsmaryk ruling. The FDA stated, “Patients should have access to FDA-approved medications that FDA has determined to be safe and effective for their intended uses.”

The appeal of Kacsmaryk’s ruling will go before the 5th Circuit Court of Appeals. If Kacsmaryk’s ruling is upheld by the 5th circuit, and is in direct conflict with Rice’s ruling, the cases will likely be heard by the U.S. Supreme Court.

Whether Rice’s ruling will be appealed (to the 9th Circuit Court of Appeals) is unclear.

Discussion Questions

1. Should judges be able to remove drugs from the market over the objections of the FDA? Why or why not?

2. Should abortion medication be legal in the United States? Why or why not?

3. Should abortion be legal? Why or why not? Which level of government should be able to determine if abortion is legal? Explain your answer(s).

Sources

Pam Belluck, “Two Federal Judges Issued Opposing Rulings on Abortion Pills. Here’s What’s Going On.,” nytimes.com, Apr. 8, 2023

Anne Flaherty, Mireya Villarreal, and Ashley Riegle, “DOJ Files Appeal after Judge Reverses FDA Approval of Abortion Drug,” abcnews.go.com, Apr. 8, 2023

Tierney Sneed, “Rival Rulings on Medication Abortion Hypercharge the Post-Roe Legal War,” cnn.com, Apr. 8, 2023