- Alliance Defending Freedom made a technical argument that a US judge’s decision to suspend the FDA’s approval of the abortion pill mifepristone could not be appealed to the 5th Circuit under federal law.
- “Accordingly, this Court must dismiss the Defendants’ appeal for lack of jurisdiction,” said Erik Baptist, the group’s lead attorney.
- The Justice Department and Danco Laboratories, the company that distributes mifepristone, said they would ask the Supreme Court to intervene in the case if necessary.
Matthew Kacsmaryk, deputy counsel for the First Liberty Institute, answers questions during his nomination hearing at the US Senate Committee on the Judiciary in Washington, DC, on December 13, 2017, in a still from the video.
Reuters
The antiabortion group at the center of a legal battle over the abortion pill mifepristone told a US appeals court it lacked jurisdiction to block a Texas decision suspending Food and Drug Administration approval of the drug.
Alliance Defending Freedom’s lead attorney, Erik Baptist, argued in a new filing with the US 5th Circuit Court of Appeals on Tuesday that the court lacks jurisdiction. to grant the Justice Department’s request to block the decision. The plaintiffs’ attorney argued that the court lacked jurisdiction because US District Judge Matthew Kacsmaryk did not issue an injunction ordering the FDA to withdraw mifepristone.
Instead, Kacsmaryk unilaterally suspended Sept. 28, 2000 by the FDA, the approval of mifepristone pending further litigation. His decision is set to take effect at 12 a.m. central time on Saturday unless the 5th Circuit blocks it. At that point, mifepristone was no longer an approved drug in the US, which meant it could not be distributed for abortions.
Baptist made a technical argument that Kacsmaryk’s decision to suspend the approval date could not be appealed to the 5th Circuit under federal law, unlike an injunction or a final court decision. He argued that the case should continue to play out in the US District Court for the Northern District of Texas.
“Accordingly, this Court must dismiss the Defendants’ appeal for lack of jurisdiction,” Baptist argued.
The Department of Justice, in its response Wednesday, said that the Alliance Defending Freedom did not mention the case that holds that the type of order issued by Kacsmaryk cannot be appealed. Government lawyers argued that Kacsmaryk’s decision amounted to a decree. They are calling on the 5th Circuit to immediately block the judge’s order from taking effect early Saturday.
“The district court is supposed to be acting in a restrained manner; but there is nothing modest about upending the decades-long status quo by restricting nationwide access to a safe and effective drug. ,” the Justice Department said. “If allowed to be implemented, the court order will cause irreparable damage to the entire country”.
The Justice Department and Danco Laboratories, the company that distributes mifepristone, said in their motion to the 5th Circuit on Monday that they would ask the Supreme Court to intervene in the case if necessary.
Alliance Defending Freedom sued the FDA in the US Northern District of Texas in November, arguing that the agency did not use the proper process to approve mifepristone in 2000. It also believed the drug was unsafe. Kacsmaryk embraced those claims in his ruling last week.
The FDA, at least 23 states, hundreds of members of Congress, leading medical associations, and drug law experts have vigorously disputed the group’s claims. They argue that the FDA approved mifepristone using its authority delegated by Congress, and that the evidence overwhelmingly shows that the drug is a safe and effective way to end early pregnancy.
“There is no basis in science or fact for the plaintiffs’ repeated claims that mifepristone is unsafe when used in the manner approved by the FDA,” Justice Department lawyers wrote in their brief Wednesday. “Nor is there any basis in administrative law for the district court’s unprecedented override of the FDA’s supposed scientific judgment.”
In addition to the Justice Department, nearly half of the US states called on the 5th Circuit to block Kacsmaryk’s decision, warning that the judge’s order threatens abortion even in states that protect access to the procedure after the the Supreme Court’s decision to reject Roe v. Wade last summer.
Mifepristone, used in combination with another drug called misoprostol, is the most common method of terminating pregnancies in the US, accounting for about half of all abortions, according to the Centers for Disease Control and Prevention.
The Alliance Defending Freedom worked with Mississippi legislators to create legislation at the center of Dobbs v. Jackson Women’s Health Organization. That case ultimately resulted in the Supreme Court overturning Roe v. Wade, the 1973 ruling that guaranteed abortion rights nationwide.
The Alliance Defending Freedom represents a group of doctors who oppose abortion called the Alliance for Hippocratic Medicine in a lawsuit against the FDA.