27.02.2024

Abortion Pill Cases Appear Headed to the Supreme Court

The dramatic dueling rulings by two federal district judges on Friday about access to a widely used abortion pill set up a lower court conflict that legal experts say will almost certainly send the dispute to the Supreme Court.

“It really turbocharges the imperative for the Supreme Court to step in and to do so sooner rather than later,” said Stephen I. Vladeck, a law professor at the University of Texas at Austin.

A federal judge in Texas issued a preliminary ruling on Friday invalidating the Food and Drug Administration’s 23-year-old approval of the abortion pill mifepristone, which could make it more difficult for patients across the country to access the medication. Less than an hour later, a federal judge in Washington State issued a ruling in another case that contradicted the Texas judge by ordering the F.D.A. to make no changes to the availability of the drug in the states involved in that suit.

For now, mifepristone continues to be available. The Texas judge, Matthew J. Kacsmaryk, an appointee of President Donald J. Trump, stayed his order for seven days to allow the F.D.A. time to seek intervention from an appeals court. But “the two decisions are in conflict and the conflict between them is not sustainable,” said Samuel L. Bray, a law professor at the University of Notre Dame.

The Justice Department has already filed a notice that it is appealing the Texas ruling to the U.S. Court of Appeals for the Fifth Circuit.The department has not yet said whether it will file an appeal in the Washington State case. That lawsuit, filed against the F.D.A. by 18 Democratic attorneys general, challenged restrictions that the agency imposes on the prescribing and dispensing of mifepristone. The judge in the case, Thomas O. Rice, an appointee of President Barack Obama, did not lift the existing restrictions in his ruling on Friday but did order the F.D.A. not to do anything to limit current access to mifepristone.

Mifepristone, the first pill in the two-drug medication abortion regimen, continues to be available for now.Credit…Allen G. Breed/Associated Press

Typically, parties to cases will wait for an appeals court ruling before seeking emergency review from the Supreme Court, Mr. Vladeck said. But the Justice Department could ask the highest court to examine the Texas case even sooner.

“Formally, the Supreme Court can step in literally the moment D.O.J. files an appeal in the Fifth Circuit,” he said.

As startling as the two rulings are, legal experts said that dueling injunctions were not unheard-of and that the courts were able to handle them. “Our judicial system, the way it’s set up, it expects there will be conflicts with courts,” said Amanda Frost, a law professor at the University of Virginia.

The Push to Restrict Abortion Pills
A federal judge in Texas invalidated the F.D.A.’s approval of an abortion pill, mifepristone. The decision could make it more difficult for patients to obtain abortions.

When a direct conflict arises, courts can look for ways to narrow injunctions or for other solutions so that a party is not put into an impossible situation, she said. She cited a conflict in Florida over buffer zones at abortion clinics — areas kept clear from anti-abortion protesters to allow for unimpeded access by patients and doctors.

In 1993, an injunction was issued in Florida to protect the Aware Woman Center for Choice — one of dozens of similar injunctions issued by state and local judges as abortion clinic operators sought help on how to deal with protests. In the fall of 1993, within weeks of each other, the Florida Supreme Court upheld the injunction and the U.S. Court of Appeals for the 11th Circuit, in Atlanta, struck it down.

The Supreme Court took the case and upheld the core of the Florida state court injunction.

In 2015, the issue of same-sex marriage led to another collision between courts. After a federal judge in Alabama declared the state’s prohibitions against same-sex marriage unconstitutional, the chief justice of the Alabama Supreme Court ordered the state’s probate judges not to issue marriage licenses to gay couples.

Later that year, the Supreme Court ruled in Obergefell v. Hodges that the Constitution guaranteed a right to same-sex marriage.

“In both cases, the Supreme Court steps into the issue,” Ms. Frost said. “There was a period of time during which there was a conflict, and the world didn’t fall apart. There is built into our system the understanding that there will be conflicts.”

If the Texas case reaches the Supreme Court, it could have implications far beyond access to abortion pills. The court could be asked to consider the effects of the Texas ruling not only for abortion but also for the F.D.A.’s authority to approve and regulate other drugs.Legal experts said Judge Kacsmaryk’s decision appeared to be the first time a court had ordered a drug’s approval to be revoked over the objection of the F.D.A. They noted that such a ruling could open the door to legal challenges against other drugs, such as vaccines, morning-after pills and other medications at the center of controversial issues. The ruling could also undermine the confidence that pharmaceutical companies place in the agency and influence the companies’ decisions about which drugs to develop and market, experts said.

Because of those broader implications for federal authority and commercial interests, some legal experts said that all six conservative justices on the Supreme Court might not automatically uphold an order that would undercut the F.D.A.’s authority.

Ameet Sarpatwari, a lawyer and assistant professor of medicine at Harvard Medical School, said that at least a couple of the conservative justices had judicial track records that suggested they might reject the Texas ruling because of “the sort of incredible disturbance of a district judge’s national injunction coupled with the extreme volatility that that’s going to lead to in the pharmaceutical market.”The Texas case has drawn additional scrutiny because it was filed in Amarillo, a single-judge division overseen by Judge Kacsmaryk. The judge has written critically about Roe v. Wade and has long supported conservative causes, including working for a conservative legal organization and serving on the board of an organization that seeks to offer pregnant women alternatives to abortion.

The lead plaintiff, the Alliance for Hippocratic Medicine, is a consortium of anti-abortion groups that are not based in Amarillo, but the alliance was incorporated there in August 2022, not long after the Supreme Court overturned Roe v. Wade.

Forum shopping, as it is called, is a common legal strategy used increasingly by both the right and the left to seek out a friendly judge or sympathetic court and press for a nationwide stay or injunction on a hot-button, partisan issue. Experts agree that these tactics have increased with political polarization.

“There’s nothing inherently wrong about trying to find a court that you think is more inclined to your way of thinking about a case,” Mr. Bray said. “What makes these unusual is that, if in one case, you can win everything, then the stakes go up.”

Concerns about Judge Kacsmaryk’s personal views on abortion playing a role in the case were heightened by the language in his ruling on Friday, legal experts said.“This does not read like a judicial opinion, it reads like an activist complaint,” Dr. Sarpatwari said. “There were several ways in which Judge Kacsmaryk could have come to the same outcome without this degree of vitriol and this reassessment of every action that the F.D.A. took.”

He continued: “I think that actually weakens his case, because it shows a real lack of credibility in the sense that most of the F.D.A. decisions are very carefully backed by evidence and he’s opened himself up to tremendous criticism that he’s ignoring about 95 percent of the science that’s out there.”

Greer Donley, an associate professor at the University of Pittsburgh School of Law, concurred with that assessment. “It’s pretty clear from the tone that he wasn’t attempting in any way to be evenhanded in his language,” she said. “He was showing his cards.”

In his ruling, the judge often used the language of the anti-abortion movement.

Mifepristone “ultimately starves the unborn human until death,” Judge Kacsmaryk wrote. He added that the F.D.A. mandated “a two-step drug regimen: mifepristone to kill the unborn human, followed by misoprostol to induce cramping and contractions to expel the unborn human from the mother’s womb.”

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