DOJ Appeals Ruling on Abortion Pill

HHS secretary has said he wants Texas judge's decision overturned
By Bob Cronin,  Newser Staff
Posted Apr 9, 2023 3:50 PM CDT
Updated Apr 10, 2023 4:56 PM CDT
Ocasio-Cortez Urges Biden to Ignore Ruling on Abortion Pill
Health and Human Services Secretary Xavier Becerra testifies in March on Capitol Hill.   (AP Photo/Mariam Zuhaib, File)
UPDATE Apr 10, 2023 4:56 PM CDT

On the first business day after a Texas judge blocked Federal Drug Administration approval of an abortion pill, the Justice Department lodged an appeal. The filing in the 5th Circuit Court of Appeals asks that Judge Matthew Kascmaryk's ruling not take effect while the appeal is being decided, the Washington Post reports, which would keep mifepristone available in the interim. The appeal argues that the ruling deprives patients "of access to this safe and effective treatment, based on the court's own misguided assessment of the drug's safety." If the 5th Circuit does not agree to the hold, the government could go to the US Supreme Court.

Apr 9, 2023 3:50 PM CDT

"Everything is on the table” as the Biden administration considers its response to a judge's decision to block federal approval of the abortion medication mifepristone, Health and Human Services Secretary Xavier Becerra said Sunday. He didn't commit on whether one of those options is the one suggested by Democratic Rep. Alexandria Ocasio-Cortez on the same talk show: Ignore the ruling and keep the drug available. "I do not believe that the courts have the authority over the FDA that they just asserted," she said in her appearance on CNN's State of the Union. Calling the ruling "a mockery of our democracy," Ocasio-Cortez said, "The executive branch has an enforcement discretion," per USA Today.

“We want the courts to overturn this reckless decision," Becerra said, per CNN. "This is not America," he said in criticizing the ruling. Democratic Sen. Ron Wyden of Oregon also has suggested the administration has the power to ignore the decision of a federal judge in Texas. "The FDA, doctors, and pharmacies can and must go about their jobs like nothing has changed and keep mifepristone accessible to women across America," he said Friday. "If they don't, the consequences of banning the most common method of abortion in every single state will be devastating."

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Legal experts have said the FDA can't be ordered to enforce the ruling, given that such a decision is part of the agency's job description, not the courts'. A Johns Hopkins legal lecturer countered that FDA officials shouldn't "disregard a court order even if they believe it's wrong," saying that could set a problematic precedent for future presidents. Those suggesting ignoring the ruling generally are putting it in the context of an interim measure, until all rulings are in, possibly even the Supreme Court's. Women have access to mifepristone now, Becerra said, "and we intend to do everything to make sure it's available for them not just in a week but moving forward, period." (More mifepristone stories.)

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