Two Democrat lawmakers and one Republican have urged the Biden administration to ignore a court ruling that blocked the use of the drug mifepristone, which is commonly used to induce abortion in the early stages of pregnancy.
Sen. Ron Wyden (D-Ore.) issued a statement on April 7—the same day a federal judge in Texas banned the use of the abortion pill—saying the lawmaker believes the Food and Drug Administration has the authority to ignore the ruling.
“There is no way this decision has a basis in law,” Wyden said of the decision by U.S. District Judge Matthew Kacsmaryk. “It is instead rooted in conservatives’ dangerous and undemocratic takeover of our country’s institutions.”
Kacsmaryk had ruled that FDA approval of the drug more than 20 years ago was invalid because it was improperly done.
“Here, F.D.A. acquiesced on its legitimate safety concerns—in violation of its statutory duty—based on plainly unsound reasoning and studies that did not support its conclusions,” Kacsmaryk wrote.
Wyden gained an unlikely ally in Rep. Nancy Mace (R-Pa.), who affirmed in a statement to the press on May 10 that the FDA should ignore the judge’s order.
“I agree with ignoring it at this point,” Mace said in a televised interview. “There are other lawsuits that are happening right now and other states as well over this issue.”
Mace, who identifies herself as pro-life, believes her party should respect the wishes of the majority of Americans who favor allowing abortion under some circumstances.
“This is an issue that Republicans have been largely on the wrong side of, we have over the last nine months not shown compassion towards women,” Mace said.
“[In] the state of South Carolina, just a few weeks ago, we had some folks in the state legislature that essentially wanted to execute women who had abortions.
“So, we’ve got some extreme views on this issue, but 90 percent of America is somewhere in the middle.
“And I think that 90 percent would be okay with listening to the FDA rather than a judge who used an old law that was determined unconstitutional by the Supreme Court.”
Kacsmaryk stayed his ruling for one week to give the Department of Justice an opportunity to appeal the ruling, but that did not satisfy Wyden and some other lawmakers.
“No matter what happens in seven days, I believe the Food and Drug Administration has the authority to ignore this ruling, which is why I’m again calling on President Biden and the FDA to do just that.
“The FDA, doctors, and pharmacies can and must go about their jobs like nothing has changed and keep mifepristone accessible to women across America.
“If they don’t, the consequences of banning the most common method of abortion in every single state will be devastating,” Wyden wrote.
Further confusing the legal landscape, a federal judge in Washington State issued a ruling the same day in another case, contradicting Kacsmaryk’s ruling by ordering the FDA to continue making the drug available in the states involved in the Washington lawsuit.
In view of that confusion, Rep. Alexandria Ocasio-Cortez (D-N.Y.) also called on the Biden administration to ignore the Texas ruling.
“The administration has an enforcement discretion, especially in light of a contradictory ruling coming out of Washington,” she said.
The DOJ has said it will appeal the Texas ruling.
Mace appears to be the lone GOP lawmaker voicing support for the FDA’s approval of mifepristone at this point. Others strongly disagree with the idea that the administration can disregard a federal court order.
If the Biden administration ignores the ruling, Rep. Tony Gonzales (R-Texas) said in a televised interview, “Then we’re going to have a problem. And it may come to a point where House Republicans on the appropriations side will have to defund FDA programs that don’t make sense.”
