Calls for feds to ignore court order blocking abortion drug are not based in reality, experts say

By Carolina Stanton On Apr 10, 2023

The Biden administration can’t simply ignore a Texas ruling blocking the approval of mifepristone, an abortion pill, according to legal experts who said that’s just overheated rhetoric and there is no clear precedent for telling the courts to take a hike.

Instead, the legal scholars said, Supreme Court precedents and a literal reading of the Texas decision should give the Food and Drug Administration enough wiggle room to avoid thorny decisions about enforcing a ban on mifepristone while the case wends its way through the courts.

Health and Human Services Secretary Xavier Becerra raised eyebrows with an Easter interview in which he said “everything is on the table” in responding to the ruling from U.S. District Judge Matthew Kacsmaryk.

The comments coincided with calls from Democratic lawmakers to ignore a ruling against the abortion pill, though within hours a chief HHS spokeswoman downplayed the idea the administration could ignore the court.

“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,” Kamara Jones, acting HHS secretary for public affairs, said in a tweet.

Indeed, legal experts said that while administrations may have slow-walked compliance with court orders in the past, there is little recent memory of flouting them outright.

“That’s untenable, you don’t want administrations to pick and choose whether they’re going to follow a court’s order,” said Jennifer Oliva, a professor of law at the University of California, San Francisco.

The abortion controversy started last week, when Judge Kacsmaryk in Texas ruled the FDA’s approval process of the drug two decades ago was unlawful and that access must temporarily cease.

In a competing and contradictory ruling on the same day, a federal judge in Washington state protected the medication.

The Department of Justice is appealing and seeking an emergency stay of the Texas decision through the U.S. Court of Appeals for the 5th Circuit before it takes effect later this week.

Mr. Becerra said the dueling decisions mean another court has to resolve the contradiction, but he refused to commit to following the Texas ruling in the meantime.

“Every option is on the table,” Mr. Becerra told CNN.

The case might get to the Supreme Court, though some on Capitol Hill want the FDA to ignore the ruling in the meantime, and it’s not just Democrats.

“I would,” Rep. Nancy Mace, South Carolina Republican, told CNN on Monday. “This is an FDA-approved drug, I support the usage of FDA-approved drugs even if we might disagree. It’s not up to us to decide as legislators — or even, you know, as the court system — whether this is the right drug to use or not, number one. So I agree with ignoring it at this point.”

She said other lawsuits are pending, but the Texas ruling should be “thrown out, quite frankly.”

Senate Finance Committee Chairman Ron Wyden, Oregon Democrat, said the administration “can and must ignore this ruling and keep mifepristone on the market and accessible for every woman in America.”

Rep. Alexandria Ocasio-Cortez, New York Democrat, echoed that view and accused the Trump administration of slow-walking claims under the Deferred Action for Childhood Arrivals program for immigrants who were brought to the U.S. illegally as children.

Josh Blackman, a professor at South Texas College of Law, said he thinks the people calling for FDA to ignore the ruling are “largely paying lip service to people angry at the court.”

“There isn’t much here. There is not really any precedent for the executive branch to ‘ignore’ a ruling of a court,” he said. “If the Supreme Court orders the executive branch to take some action, I can’t imagine any circumstance where the president says ‘no.’”

Laurence Tribe, a legal scholar and professor emeritus at Harvard University, said there is a concept known as “agency non-acquiescence,” but that usually refers to a party ignoring an appellate precedent during an active case, and not a direct judicial order.

In this case, Mr. Tribe said, the Texas order stayed the effective date of the FDA approval of mifepristone but did not take the form of an order directing the FDA to take any action or forbidding it to take any action.

“Even treating that stay order as binding, it does not amount to a decree commanding or forbidding any particular course of action by the FDA,” he said. “It is a creature of a strange sort, almost as strange as the Kacsmaryk opinion itself.”

Ms. Oliva said the conflicting orders over mifepristone left a sticky situation for the FDA.

“There conflicting court orders, you’re damned if you do, damned if you don’t,” she said. “It’s virtually impossible to comply with both.”

However, she said a 1985 Supreme Court decision in Heckler v. Chaney may give the FDA a roadmap for staying out of hot water while the case proceeds.

In that case, a group of death-row inmates said the drugs to be used for their executions were not approved for use in human executions and violated federal law. They wanted the FDA to step in and enforce the law, but the court determined that FDA regulators had the discretion to stay out of the situation.

Ms. Oliva said the FDA may point to that decision to do nothing and avoid going after pharmacists and others who dole out mifepristone.

FDA regulators, she said, could say, “We’re not going to pursue any kind of legal action because we have these conflicting orders.”

Pressed on the next steps, the FDA referred The Washington Times to a statement it issued Saturday that defended its review and approval of mifepristone.

“FDA stands behind its determination that mifepristone is safe and effective under its approved conditions of use for medical termination of early pregnancy, and believes patients should have access to FDA-approved medications that FDA has determined to be safe and effective for their intended uses.”

• Ramsey Touchberry contributed to this report.