The Biden administration can’t simply ignore a Texas ruling blocking the approval of mifepristone, an abortion pill, according to legal analysts, who said that’s just overheated rhetoric without a clear precedent.
Instead, the legal scholars said, Supreme Court precedents and a literal reading of the Texas decision should allow the Food and Drug Administration to avoid tough decisions about enforcing a ban on mifepristone while the case wends its way through the courts.
Health and Human Services Secretary Xavier Becerra, responding to U.S. District Judge Matthew Kacsmaryk’s ruling, raised eyebrows when he said in an Easter interview that “everything is on the table.”
The comments coincided with calls from Democratic lawmakers to ignore a ruling against the abortion pill. Within hours, though, a chief HHS spokeswoman downplayed the idea that 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.
Likewise, the White House said Monday that it will always follow the law and that disregarding a legal order would be “dangerous.”
SEE ALSO: GOP Rep. Nancy Mace sides with Democrats urging Biden to ignore abortion pill ruling
“But it doesn’t mean that we’re not going to fight,” said White House press secretary Karine Jean-Pierre.
Indeed, legal analysts said other administrations have slow-walked compliance with court orders, but 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.
Judge Kacsmaryk ruled in Texas last week that the FDA’s drug approval process two decades ago was unlawful and that access to mifepristone must temporarily cease.
Judge Kacsmaryk said in his 67-page decision that the court “does not second-guess FDA’s decision-making lightly.”
“But here, FDA 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,” said the judge, a Trump appointee who sits on the federal court in Amarillo, Texas.
SEE ALSO: Biden HHS secretary says ignoring court order against abortion pill is ‘on the table’
In a competing and contradictory ruling on the same day, a federal judge in Washington state protected the medication.
The Justice Department filed an appeal Monday in the 5th U.S. Circuit Court of Appeals and sought an emergency stay of the Texas decision so it would not take effect later this week.
“The court’s sweeping nationwide relief was especially unwarranted given the balance of harms: 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,” Justice Department attorneys wrote.
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 — and not just Democrats — want the FDA to ignore the ruling.
“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, No. 1. 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 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 the 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 a concept known as “agency non-acquiescence” usually refers to a party’s 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 put the FDA in a tricky situation.
“They’re conflicting court orders. You’re damned if you do, damned if you don’t,” she said. “It’s virtually impossible to comply with both.”
She said a 1985 Supreme Court decision in Heckler v. Chaney might give the FDA a road map for avoiding a predicament while the case proceeds.
In that case, a group of death row inmates said the drugs intended for their executions were not approved for 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 might point to that decision to do nothing and avoid pursuing pharmacists and others who provide mifepristone.
FDA regulators, she said, could say, “We’re not going to pursue any kind of legal action because we have these conflicting orders.”
On Monday, administration attorneys asked the court in Washington state for guidance in reconciling the orders.
“The court did not address the interaction between the two orders, presumably because they were issued less than 20 minutes apart,” they wrote in court papers. “To ensure that defendants comply with all court orders in these unusual circumstances, defendants respectfully request that this court clarify their obligations under its preliminary injunction in the event that the [Texas order] takes effect and stays the approval of mifepristone.”
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.
• Tom Howell Jr. can be reached at thowell@washingtontimes.com.
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