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DOJ files emergency motion to block judge’s ruling that would end decades of access to abortion medication


People march through downtown Amarillo to protest a lawsuit in federal court to ban the abortion drug mifepristone Saturday, Feb. 11, 2023, in Amarillo, Texas. (AP Photo/Justin Rex)

The Justice Department has asked a federal appeals court to block a judge’s ruling that would stop the sale of abortion medication nationwide.

The Justice Department filed an emergency motion on Monday, three days after U.S. District Judge Matthew J. Kacsmaryk issued a ruling that withdrew the U.S. Food and Drug Administration’s approval of the drug mifepristone, effectively banning the sale and use of the drug nationwide.

Mifepristone is used to end a pregnancy up until 10 weeks. According to the DOJ, it has been used by more than 5 million Americans, and “serious adverse events” have been “exceedingly rare” when the drug is used as the FDA directs.

“[P]regnancy itself entails a significantly higher risk of serious adverse events, including a death rate 14 times higher than that associated with legal abortion,” the DOJ wrote in its motion.

Kacsmaryk, a Donald Trump appointee with a history of opposing abortion access, has long been anticipated to rule in favor of the Alliance for Hippocratic Medicine and other organizations that oppose legal abortion

Kacsmaryk’s decision didn’t take immediate effect, as he issued a seven-day administrative stay on his own order. The Justice Department used this window of time to file its appeal to the reliably conservative Fifth Circuit U.S. Court of Appeals.

The DOJ’s strongly worded stay request criticizes not only the plaintiffs in the case but also Kacsmaryk himself, implying that the judge has all but gone rogue with his ruling.

“Plaintiffs lack standing to challenge FDA’s approval of a drug they neither take nor prescribe; their challenge to FDA actions dating back to 2000 is manifestly untimely; and they have provided no basis for second-guessing FDA’s scientific judgment,” the motion says. “Those defects foreclose plaintiffs’ claims, and the court flouted fundamental principles of Article III and administrative law in holding otherwise. Indeed, no precedent, from any court, endorses plaintiffs’ standing, timeliness, or merits theories.”

The motion notes that the judge’s sweeping ban would “thwart FDA’s scientific judgment severely harm women, particularly those for whom mifepristone is a medical or practical necessity.”

The opponents to abortion access, meanwhile, “present no evidence that they will be injured at all, much less irreparably harmed, by maintaining the status quo they left unchallenged for years,” the DOJ wrote in the filing.

Kacsmaryk’s ruling, issued Friday, was countered that same day by U.S. District Judge Thomas O. Rice, a Barack Obama appointee in Washington state who found that mifepristone is safe and ordered it to remain available in the 17 states involved in the litigation, along with the District of Columbia.

You can read the DOJ’s request for a stay of Kacsmaryk’s order pending appeal here.

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