By Abbie Van Sickle and Pam Belluck
The dramatic dueling rulings by two federal district judges late last week about access to a widely used abortion pill set up a lower court conflict that legal experts say will almost certainly send the dispute to the Supreme Court.
“It really turbocharges the imperative for the Supreme Court to step in and to do so sooner rather than later,” said Stephen Vladeck, a law professor at the University of Texas at Austin.
A federal judge in Texas issued a preliminary ruling Friday invalidating the Food and Drug Administration’s 23-year-old approval of the abortion pill mifepristone, which could make it more difficult for patients across the country to access the medication. Less than an hour later, a federal judge in Washington state issued a ruling in another case that contradicted the Texas judge by ordering the FDA to make no changes to the availability of the drug in the 18 states involved in that suit.
For now, mifepristone continues to be available. The Texas judge, Matthew Kacsmaryk, an appointee of President Donald Trump, stayed his order for seven days to allow the FDA time to seek intervention from an appeals court. But “the two decisions are in conflict and the conflict between them is not sustainable,” said Samuel L. Bray, a law professor at the University of Notre Dame.
The Justice Department has already filed a notice that it is appealing the Texas ruling to the U.S. Court of Appeals for the 5th Circuit.
The department has not yet said whether it will file an appeal in the Washington state case. That lawsuit, filed against the FDA by 18 Democratic attorneys general, challenged restrictions that the agency imposes on the prescribing and dispensing of mifepristone. The judge in the case, Thomas Rice, an appointee of President Barack Obama, did not lift the existing restrictions in his ruling Friday but did order the FDA not to do anything to limit current access to mifepristone.
Typically, parties to cases will wait for an appeals court ruling before seeking emergency review from the Supreme Court, Vladeck said. But the Justice Department could ask the highest court to examine the case even sooner.
“Formally, the Supreme Court can step in literally the moment DOJ files an appeal in the 5th Circuit,” he said.
As startling as the two rulings are, legal experts said dueling injunctions were not unheard of and that the courts were able to handle them. “Our judicial system, the way it’s set up, it expects there will be conflicts with courts,” said Amanda Frost, a law professor at the University of Virginia.
When a direct conflict arises, courts can look for ways to narrow injunctions or for other solutions so that a party is not put into an impossible situation, she said. She cited a conflict in Florida over buffer zones at abortion clinics — areas kept clear from anti-abortion protesters to allow for unimpeded access by patients and doctors.
In 1993, an injunction was issued in Florida to protect the Aware Woman Center for Choice — one of dozens of similar injunctions issued by state and local judges as abortion clinic operators sought help on how to deal with protests. In the fall of 1993, within weeks of each other, the Florida Supreme Court upheld the injunction and the U.S. Court of Appeals for the 11th Circuit, in Atlanta, struck it down.
The Supreme Court took the case and upheld the core of the Florida state court injunction.
If the Texas case reaches the Supreme Court, it could have implications far beyond access to abortion pills. The court could be asked to consider the effects of the Texas ruling not only for abortion but also for the FDA’s authority to approve and regulate other drugs.
Legal experts said Kacsmaryk’s decision appeared to be the first time a court had ordered a drug’s approval to be revoked over the objection of the FDA and that such a ruling could open the door to legal challenges against other drugs, such as vaccines, morning-after pills and other medications at the center of controversial issues. The ruling could also undermine the confidence that pharmaceutical companies place in the agency and influence the companies’ decisions about which drugs to develop and market, experts said.
Because of those broader implications for federal authority and commercial interests, some legal experts said that all six conservative justices on the Supreme Court might not automatically uphold an order that would undercut the FDA’s authority.
Ameet Sarpatwari, a lawyer and assistant professor of medicine at Harvard Medical School, said that at least a couple of the conservative justices had judicial track records that suggested they might reject the Texas ruling because of “the sort of incredible disturbance of a district judge’s national injunction coupled with the extreme volatility that that’s going to lead to in the pharmaceutical market.”
The Texas case has drawn additional scrutiny because it was filed in Amarillo, a single-judge division overseen by Kacsmaryk. The judge has written critically about Roe v. Wade and has long supported conservative causes, including working for a conservative legal organization and serving on the board of an organization that seeks to offer pregnant women alternatives to abortion.
Concerns about Kacsmaryk’s personal views on abortion playing a role in the case were heightened by the language in his ruling Friday, legal experts said.
“This does not read like a judicial opinion, it reads like an activist complaint,” Sarpatwari said. “There were several ways in which Judge Kacsmaryk could have come to the same outcome without this degree of vitriol and this reassessment of every action that the FDA took.”
In his ruling, the judge often used the language of the anti-abortion movement.
Mifepristone “ultimately starves the unborn human until death,” Kacsmaryk wrote. He added that the FDA mandated “a two-step drug regimen: mifepristone to kill the unborn human, followed by misoprostol to induce cramping and contractions to expel the unborn human from the mother’s womb.”