Washington — The Biden administration on Sunday appeared to dismiss suggestions from some congressional Democrats that it ignore a ruling from a federal judge in Texas that took aim at the abortion pill, with a spokeswoman saying doing so would set a “dangerous precedent.”
In a series of tweets in response to a decision from U.S. District Judge Matthew Kacsmaryk halting the Food and Drug Administration’s (FDA) approval of the drug mifepristone, Kamara Jones, spokeswoman for the Department of Health and Human Services, reiterated that the agency is prepared to continue defending that 22-year-old approval through the legal process.
“People are rightly frustrated about this decision — but 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,” Jones said. “We are confident that the law is on our side.”
Jones noted that the Justice Department will seek a stay of the decision pending appeal to the U.S. Court of Appeals for the 5th Circuit, which would allow mifepristone to stay on the market while legal proceedings continue.
“There is a process in place for appealing this decision and we will do everything we can to prevail in the courts,” she said.
Kacsmaryk on Friday halted the FDA’s approval of mifepristone from 2000, ending weeks of anticipation over how he would rule in a closely watched case brought by anti-abortion rights physicians and medical associations. He put his decision on hold for seven days to allow the Biden administration to appeal, which it formally did Friday night.
While Kacsmaryk’s decision in favor of the anti-abortion rights groups was not unexpected, it injects further chaos into a legal landscape that was upended by the Supreme Court’s decision last year to end the constitutional right to abortion.
The FDA decision was swiftly denounced by Democratic lawmakers and abortion rights advocates, who said it was unprecedented and warned of the potential broader ramifications for the FDA’s ability to approve other medications.
But a handful of Democrats went further and urged the Biden administration not to comply with Kacsmaryk’s ruling.
“No matter what happens in seven days, I believe the Food and Drug Administration has the authority to ignore this ruling, which is why I’m again calling on President Biden and the FDA to do just that,” Sen. Ron Wyden of Oregon said in a statement. “The FDA, doctors, and pharmacies can and must go about their jobs like nothing has changed and keep mifepristone accessible to women across America. If they don’t, the consequences of banning the most common method of abortion in every single state will be devastating.”
Wyden’s suggestion earned support from Rep. Alexandria Ocasio-Cortez of New York, who told CNN that she also believes the Biden administration should discount Kacsmaryk’s decision.
“The courts have the legitimacy and they rely on the legitimacy of their rulings and what they are currently doing is engaged in an unprecedented and dramatic erosion of the legitimacy of the courts,” she said.
Ocasio-Cortez doubled down on her comments Sunday, telling CNN’s “State of the Union” that the executive branch has “enforcement discretion” and calling the decision an “extraordinary example of judicial overreach.”
In a separate interview with CNN, Health and Human Services Secretary Xavier Becerra was asked whether he would recommend the FDA ignore a court-ordered ban on mifepristone, and said “everything is on the table.”
“We want the courts to overturn this reckless decision,” he told CNN.
At least one Republican, Rep. Nancy Mace of South Carolina, suggested she believes the FDA should ignore the decision.
“This is an FDA approved drug,” she told CNN on Monday. “Whether you agree with its usage or not, that’s not your decision. That’s the FDA’s decision on the efficacy, safety and usage of that particular drug.”
The FDA approved mifepristone more than 20 years ago, and the drug is taken together with a second medicine, misoprostol, to terminate a pregnancy through 10 weeks gestation. In the years since, the agency has made several changes to the rules surrounding the abortion pill, including approving a generic version of mifepristone in 2019 and lifting a requirement that the pills be dispensed in-person in 2021, which allowed the drug to be prescribed by a provider during telemedicine appointments and sent by mail.
Medication abortions have become more common over the years, accounting for more than half of all abortions in the U.S. in 2020, according to the Centers for Disease Control and Prevention. The American College of Obstetricians and Gynecologists notes medication abortion has been used by over 3 million women in the U.S. since FDA approval in 2000, and says it is “safe and effective.”