Biden Administration Waves Off Calls To Ignore Abortion Pill Ruling

A Health and Human Services official said it would "set a dangerous precedent for the Administration to disregard a binding decision."
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President Joe Biden’s administration said it will not ignore a federal judge’s ruling that could eliminate access to a drug used in a majority of abortions in the United States ― even as Democrats and even a Republican in Congress have suggested they simply brush the ruling aside.

The ruling, issued Friday night by a U.S. District Court judge in Texas, found that the Food and Drug Administration’s approval of mifepristone more than two decades ago was illegal. The judge stayed the ruling for seven days, and the Department of Justice immediately appealed the ruling to the U.S. Court of Appeals for the 5th Circuit.

Almost immediately, some Democrats ― including Sen. Ron Wyden (D-Ore.) and Rep. Alexandria Ocasio-Cortez (D-N.Y.) ― began calling on the Biden administration to effectively ignore the ruling, noting that the law clearly and specifically gives the FDA sole authority over the drug approval process to keep it free from political interference.

In an interview Sunday on CNN’s “State of the Union,” Health and Human Services Secretary Xavier Becerra seemed to indicate that the administration, which generally shies away from legal confrontations sought by progressives, would consider ignoring the ban.

“Everything is on the table,” Becerra said. “The president said that way back when the Dobbs decision came out. Every option is on the table.”

A few hours later, however, the department ruled it out.

“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, a spokesperson for Health and Human Services, wrote on Twitter.

Health and Human Services Secretary Xavier Becerra briefly left the door open for the administration to ignore last week's court ruling on mifepristone, before another HHS official ruled it out hours later.
Health and Human Services Secretary Xavier Becerra briefly left the door open for the administration to ignore last week's court ruling on mifepristone, before another HHS official ruled it out hours later.
Kevin Dietsch via Getty Images

So far, the White House has not weighed in on the issue. A White House spokesperson did not respond to an email seeking comment this weekend.

The Trump-appointed judge who issued the ruling, Matthew Kacsmaryk, filled it with language often used by activists who oppose abortion rights, referring to the fetus as “the unborn child” and doctors as “abortionists.”

Not long after Kacsmaryk’s ruling, a different federal judge in Washington state issued an order requiring the FDA to keep mifepristone approval in 17 states and the District of Columbia. The clashing rulings are likely to send the issue quickly to the Supreme Court.

Ocasio-Cortez, also appearing on CNN on Sunday, argued that Kacsmaryk’s decision makes “a mockery of our system, a mockery of our democracy, and a mockery of our law.”

“We know that the executive branch has an enforcement discretion,” Ocasio-Cortez said.

Rep. Nancy Mace (R-S.C.), a relatively moderate Republican, said on CNN on Monday that the FDA should ignore the ruling, which she said was poorly reasoned.

“This is an FDA-approved drug,” Mace said. “Whether you agree with its usage or not, that’s not your decision. That is the FDA’s decision.”

David Cohen, a law professor at Drexel University who has written extensively about abortion rights, noted that Kacsmaryrk’s ruling does not explicitly tell the FDA to take any steps beyond ruling the drug’s approval was illegal, giving the agency leeway to engage in selective enforcement.

“It didn’t tell the FDA it had to do anything,” Cohen said. “So, it is now up to the FDA to look at this order and say, ‘What can we do and what should we do now?’ So it’s in their hands to take actions to keep mifepristone accessible to everyone.”

Medication abortion is widely popular in the United States. A February survey from Data for Progress, a liberal group, found that just 33% of voters would approve of a ruling overturning the FDA’s approval of mifepristone, while 59% would oppose such a ruling.

Most Republicans, faced with defending an unpopular decision, have instead tried to attack Ocasio-Cortez and other Democrats for suggesting the administration ignore the ruling.

“Democrats don’t care about undermining the rule of law or the consequences that will come from destroying the institutions that protect the Constitution,” Sen. Ted Cruz (R-Texas) wrote on Twitter, without defending the content of Kacsmaryk’s ruling. “Nothing is too extreme for Dems as they try to ram through their Left-Wing agenda.”

Alanna Vagianos contributed reporting.

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