The Biden administration didn’t immediately rule out the possibility of simply ignoring the Donald Trump–appointed federal judge’s ruling that could soon take mifepristone, a leading abortion medication, off the shelves. “Everything is on the table. The president said that way back when the Dobbs decision came out. Every option is on the table,” Secretary of Health and Human Services Xavier Becerra said in an interview with CNN on Sunday. HHS spokesperson Kamara Jones seemed to walk back Becerra’s remarks, tweeting, “As dangerous a precedent it sets for a court to disregard FDA’s expert judgment regarding a drug’s safety and efficacy, it would also set a dangerous precedent for the Administration to disregard a binding decision.”
Still, several Democrats have called on the Biden administration to disregard the decision, speaking to the pressure the administration is under to somehow stop the ruling from taking effect. Speaking with CNN on Sunday, New York representative Alexandria Ocasio-Cortez stressed that “the executive branch has an enforcement discretion” regarding the ruling, which she lambasted as an “extreme abuse of power” and an “extraordinary example of judicial overreach.” In a Friday statement, Oregon senator Ron Wyden also posited that the administration “has the authority to ignore this ruling,” adding that if it doesn’t, “the consequences of banning the most common method of abortion in every single state will be devastating.”
US district judge Matthew Kacsmaryk ruled Friday to halt the FDA approval of mifepristone, which is used in roughly half of all abortions performed in the United States. Kacsmaryk gave the Biden administration seven days to respond to the ruling, meaning mifepristone remains legal for now. The future of the drug, however, remains in legal limbo. Attorney General Merrick Garland did file an appeal within hours of the decision on Friday and will seek a stay of the Texas ruling. Further adding to the legal melee, a federal judge in Washington State issued a separate, contradictory ruling, arguing that the FDA had placed burdensome regulation on abortion medication—which could potentially set up a clash before the Supreme Court. (The US district court judge in the Washington case, Thomas Rice, said that his ruling only affects 17 states and the District of Columbia, as they were involved in the challenge.)
The Biden administration and reproductive rights advocates have framed the mifepristone fight as part of a coordinated conservative effort to end abortion in America. “It is the next big step toward the national ban on abortion that Republican elected officials have vowed to make law in America,” Biden said in his statement. Kacsmaryk’s initial footnote in the ruling has been highlighted to buttress this argument. In it, Kacsmaryk—a product of the conservative legal pipeline—borrows language from the antiabortion movement, writing why he refuses to use the the word “fetus” in his 67-page ruling:
Medication abortion has been a top target of conservative lawmakers and antiabortion advocates since Dobbs. Mifepristone currently remains legal in the United States, as does misoprostol, the other drug commonly used in medication abortions, which has gone unchallenged in this suit. But antiabortion activists have made clear the Texas case is just the beginning of efforts to reshape reproductive rights in post–Roe v. Wade America.
The Biden administration has cast doubt on what authority, if any, Kacsmaryk has to strip mifepristone’s FDA approval. “Today a single federal district judge in Texas ruled that a prescription medication that has been available for more than 22 years…should no longer be approved in the United States. The court in this case has substituted its judgment for FDA, the expert agency that approves drugs,” Biden said in his statement. Democrats have warned of the cascading implications of this ruling: “First and foremost, when you turn upside down the entire FDA approval process, you’re not talking about just mifepristone,” Becerra said. “You’re talking about every kind of drug. You’re talking about our vaccines; you’re talking about insulin; you’re talking about the new Alzheimer’s drugs that may come on.”
Even Republican congresswoman Nancy Mace—who has been critical of her party’s approach to abortion access since the midterms—weighed in on the validity of Kacsmaryk’s ruling. “The abortion pill ruling last week used an 1873 law the Supreme Court ruled unconstitutional in 1983,” she wrote on Twitter. “Whether you agree [with] the FDA-approved use or not, that’s the FDA’s decision. We can all agree using a law deemed unconstitutional as its basis [probably] isn’t your best bet either.”
At the state level, conservative lawmakers continue to push restrictive antiabortion legislation. Just within this past week, Idaho governor Brad Little signed into law an “abortion trafficking” bill that criminalizes obtaining abortion medication for a minor or helping them to leave the state for abortion care without parental consent, and the Florida State Senate passed legislation that would ban abortions at just six weeks, which Governor Ron DeSantis has signaled he will sign into law if it also passes the Florida House. “This is a concerted effort that we see playing across the country. And we have to be vigilant,” Nevada Democrat Catherine Cortez Masto said on MSNBC after Kacsmaryk issued his ruling.
