Health and Human Services Secretary Xavier Becerra said Sunday that the Biden administration is considering ignoring an order by a federal judge in Texas blocking the government’s approval of the abortion pill mifepristone.
Mr. Becerra said “everything is on the table,” including a court order violation.
U.S. District Judge Matthew Kacsmaryk ruled last week that the Food and Drug Administration’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.
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.
“I’ve got to believe that an appeals court, the Supreme Court or whatever court, has to understand that this ruling by this one judge overturns not just access to mifepristone but possibly any number of drugs,” Mr. Becerra said on CNN’s “State of the Union.”
When pressed by host Dana Bash on whether he would recommend that the FDA ignore a ban, he said, “Everything is on the table. The president said that way back when the Dobbs decision came out. Every option is on the table.”
The administration has filed a notice of appeal for the Texas case that is expected to reach the Supreme Court. Last year, a ruling in the case of Dobbs v. Jackson Women’s Health Organization overturned the 1973 Roe v. Wade decision that made abortion a federal constitutional right.
The abortion pill has been approved for ending pregnancies no later than 10 weeks and is the most popular method of pregnancy termination in the U.S.
The administration received immediate blowback for Mr. Becerra’s suggestion.
Rep. Tony Gonzales, a Texas Republican on the House Appropriations Committee, predicted that the Republican majority might defund unspecified FDA programs if the administration ignores Judge Kacsmaryk’s ruling.
“It’s very dangerous when you have the Biden administration coming out and saying they may not uphold a ruling. … House Republicans have the power of the purse, and if the administration wants to not live up to this ruling, then we’re going to have a problem,” Mr. Gonzales said on CNN’s “State of the Union.”
“There may become a point where House Republicans on the appropriations side have to defund FDA programs that don’t make sense,” he said.
Rep. Alexandria Ocasio-Cortez, New York Democrat, is among a growing number of liberals who have suggested that the administration ignore the federal judge’s ruling in Texas restricting mifepristone pending the outcome of a legal challenge.
“There’s an exterminatory amount of precedence for this. … The Trump administration also did this very thing, but also it has happened before,” Ms. Ocasio-Cortez told “State of the Union.” She cited rulings on immigration issues, specifically the Deferred Action for Childhood Arrivals.
“The idea of consistency in governance until there is a higher court ruling is not an unprecedented thing to happen,” she said.
Ms. Ocasio-Cortez apparently was referring to a 2020 Supreme Court ruling in which the justices blocked a Trump administration effort to phase out DACA.
Several weeks after the ruling, activists complained that the Trump team had not begun to approve applications for DACA status that would protect illegal immigrants from deportation.
The administration said it was still studying the high court’s ruling to sort out its implications. A district court then directly ordered the administration to begin processing applications.
Ms. Ocasio-Cortez refused to say that the administration should follow the ruling if the Supreme Court sides with Judge Kacsmaryk and rebuffs the contradictory ruling by District Judge Thomas O. Rice in Washington.
“My hope would be that we do not get to that point,” she said. “If we do, I do believe that we must start to push back on our system of checks and balances, which is designed to push back should there be an example of judicial tyranny and judicial overreach.”
Civil rights lawyer Andrew Laufer also opposed Judge Kacsmaryk’s decision but in a series of tweets rejected Ms. Ocasio-Cortez’s suggestion of defying the judicial branch.
“We appeal horrendous decisions such as this, congresswoman. We don’t ignore judicial decisions simply because they’re egregious,” Mr. Laufer said.
“If we do, it will undermine our judicial system and give license to anti-democratic forces to do the same. Congress doesn’t have the votes to impeach/remove this judge,” he said.
Other Democratic lawmakers expressed caution against ignoring the order from Judge Kacsmaryk, a Trump appointee, even if it contradicted another ruling.
“I get the sentiment because this is truly infuriating,” Sen. Patty Murray, Washington Democrat, told reporters over the weekend. “But the key thing that has to happen right now is to make sure this decision is quickly appealed and overruled in court.”
Judge Rice ruled in Washington that the FDA should maintain its status quo on mifepristone in 17 states and the District of Columbia.
The contradictory rulings have prompted confusion and uncertainty about whether and where mifepristone is still legal.
Judge Kacsymark’s decision was in response to a lawsuit for pro-life medical associations and doctors filed by Alliance Defending Freedom. The lawsuit claimed the FDA violated its own safety protocols by approving mifepristone in 2000 for self-induced abortions.
• Valerie Richardson and Stephen Dinan contributed to this report.
• Ramsey Touchberry can be reached at rtouchberry@washingtontimes.com.
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