AUSTIN, Texas – The Justice Department on Monday appealed a Texas court ruling that would halt approval of the most commonly used method of abortion in the U.S., calling the decision “extraordinary and unprecedented.”
The request to the 5th U.S. Circuit Court of Appeals was filed just days after conflicting court rulings over the legality of the abortion medication mifepristone put in doubt access to the drug that has been widely available for more than 20 years.
U.S. District Judge Matthew Kacsmaryk, an appointee of Donald Trump, issued his decision Friday but ruled it would not take effect for seven days. The Biden administration in its filing with the New Orleans-based appellate court said the Texas “court’s extraordinary and unprecedented order should” remain on hold while it appeals.
“If allowed to take effect, the court’s order would thwart FDA’s scientific judgment and severely harm women, particularly those for whom mifepristone is a medical or practical necessity,” the Justice Department wrote.
Jacksonville abortion clinic A Woman’s Choice is still prescribing the pills and they’ve been getting a lot of calls from concerned patients. But for now, mifepristone is still available as the courts weigh the issues moving forward.
Curtis Fallgatter, a former federal prosecutor who is now a criminal defense attorney Jacksonville, agreed with the Justice Department and called the move by Judge Kacsmaryk unprecedented.
“Now a judge comes in and says, I guess I know more about the medical science than FDA,” Fallgatter said.
Judge Kacsmaryk, who was appointed by President Trump, wrote that the drug posed a substantial threat of irreparable harm.
Amber Gavin, vice president of advocacy and operations at A Woman’s Choice, said that’s not true.
“It’s safer than Tylenol. Yes, truly, so a really,” Gavin said. “He’s mistaken...it’s politically motivated.”
Kacsmaryk's decision came at nearly the same time a separate federal judge in the state of Washington directed U.S. authorities not to make any changes that would restrict access to the drug in at least 17 states where Democrats had sued.
The Food and Drug Administration approved the use of mifepristone in 2000.
The whiplash of the conflicting decisions is likely to put the issue on an accelerated path to the Supreme Court.
Underlining that confusion, the Justice Department on Monday separately asked the federal court in Washington state for clarity.
The abortion drug has been widely used in the U.S. since securing FDA approval and there is essentially no precedent for a lone judge overruling that agency's medical decisions. Mifepristone is one of two drugs used for medication abortion in the United States, along with misoprostol, which is also used to treat other medical conditions.
Many providers have to wait and see what legal filings are made between now and Friday before deciding what to do next, Jennifer Dalven, director of the American Civil Liberties Union’s Reproductive Freedom Project, told reporters.
If the Texas court's ruling takes effect, some providers are prepared to pivot to a misoprostol-only regimen while others may transition to only surgical abortions.
“We don’t know exactly what will happen” in the courts, Dalven said. “What we do know is that there will be significant confusion and chaos as providers try to provide the best care they possibly can for their patients.”
Gavin said providers at A Woman’s Choice expect mifepristone to be available for at least the next few months and if the drug is banned, abortions can still be effectively initiated using just the second pill in the cocktail although it doesn’t relieve the pregnancy symptoms that mifepristone does.
“If that’s the case, you still can safely get an abortion, it’s just that you may feel those pregnancy hormones for days or weeks after,” Gavin said.
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Associated Press reporter Amanda Seitz in Washington contributed to this report.