Saved by the conservative Supreme Court, the abortion pill mifepristone, FDA approved for the last 23 years, with over 5.6 million prescribed the drug, issued a stay of the April 7 order issued by Trump-appointee, U.S. District Court Judge in North Texas, Amarillo Judge Matthew Kacsmaryk. Kacsmaryk reviewed a case from Doctors for Hippocratic Medicine, a pro-life group, arguing the FDA approve medicine endangered patients. Since 2019 when mifepristone went generic, made today by the drug maker GenBioPro Given that the Supreme Court overturned 1973 Roe v. Wade June 21, 2022, considered settled law by most justices on the Supreme Court, pro-life groups have done everything to end abortions in the U.S. Voting 7-2 today to issue a stay on Kacsmaryk’s April 7 ban, the Supreme Court decided to let the New Orleans-based 5th Appeals Court resolve the attempt ban.
Today’s 7-2 ruling sets the record straight for pro-life groups believing that the court’s conservative makeup almost guarantees a pro-life ruling. Democrats and the press expected the full Supreme Court to rule to maintain Kacsmaryk;s ban on the use of mifepristone, the so-called morning after pill. “The April 7 order issues by the U.S. District of Texas is stayed pending disposition in the appeal in the U.S. Court of Appeals for the 5th Circuit,” the High Court wrote today in its order. Only Associate Justices Samuel Alito and Clarence Thomas dissented on continuing to allow mifeprestione sold in U.S. pharmacies. Democrats and the press were convinced the Supreme Court would agree with Kacsmaryk in banning the Number 1 U.S. abortion method. Yet the conservative High Court had problems with the U.S. courts intervening when it came to an FDA-approved medication.
Anti-abortion groups argued in Kacsmaryk’s courtroom challenged the 2000 FDA approval of Danco Pharmaceutical’s brand-name Mifeprex, something prescribed for the last 23 years. Justice Department lawyers filed suit in U.S. 5th Circuit Court of Appeals in New Orleans, restricting mifepristone to a 2016 regulation to seven weeks beyond pregnancy. Staying Kacsmaryk’s order, the Supreme Courts wants the 5th Circuit Court of Appeals to rule whether it’s Constitutional for the Judicial Branch to infringe on the Executive Branch’s FDA. Karsmaryk stretched the Federal bench to the breaking point, questioning the safety-and-approval of an FDA-approved medication. FDA has autonomy when it comes to evaluation drugs seeking FDA approval. “Every extant package of Mifeprex would instantly become misbranded and could not be lawfully introduced into interstate commerce,” the FDA argued.
When does the Judicial Brach impose its Constitutional authority on the Executive branch, especially when it comes to something scientific like the drug approval process? FDA lawyers argued that that Kacsmaryk’s ruling restricted the GenBioPro’s authority to distribute mifepristone. Kacsmaryk’s rulings “would cease to be approved altogether,” “Every extant package of Mifeprex would instantly become misbranded an could not be lawfully introduce into interstate commerce,” the agency argues. Danco said in the 5th Circuit that that Kacsmaryk order as “first-in-a-centurly second-guessing of FDA’s scientific judgment creating “immediate chaos and nationwide confusion.” Alliance for Hippocratic Medicine, a pro-life group, argued in Kacsmaryk’s courtroom that mifepristone was fast-tracked in 2000 without proper safeguards against potentially life-threatening conditions.
Prescribed over 5.6 million times since 2000, there’s plenty of track record regarding mifepristone’s safety and efficacy. Anti-abortion groups have jumped on every opportunity around the country since the Supreme Court overturned 1973 Roe v. Wade to ban abortion in every possible place. Ruling in favor of Dobbs v. Jackson June 21, 2022, the Supreme Court ruled that the Constitution provides no guarantee of abortion. But Roe v. Wade assured women the right to choose, not passing moral judgment on the federal right to abortion. Ruling to end Roe v. Wade, the conservative Supreme Court ruled incorrectly, looking only on a Constitutional right to abortion, not a women’s Constitutional right to make health care decisions with her doctor. Trying to ban mifepristone, Kacsmaryk violated the separation of powers, overreaching his judicial authority.
Today’s Supreme Court ruling to stop Kacsmaryk’s ban on mifepristone indicates that the High Court wants the matter resolved in the 5th Circuit Court of Appeals, especially the Constitutional issue of whether the judicial branch can interfere with the Executive branch’s FDA. If the 5th Circuit doesn’t get it right, the matter will come back to the Supreme Court to settle or whether or not the judicial branch can overrule the Executive Branch. Base on the decisive 7-2 ruling, it’s clear a strong Supreme Court majority wants the issue fully resolved in the appeals court. Department of Justice lawyers made a strong case why Washington-state based U.S. District Court Judge Thomas D. Rice ordered his own stay to allow mifepristone to continue being sold in U.S. pharmacies. FenBioPros, the generic maker of mifepristone, filed amicus briefs with 24 state attorney’s general urging the High Court to issue the stay.
About the Author
John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He’s editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.
