A 5th U.S. Circuit Court of Appeals panel blocked part of a Donald Trump-appointed judge’s extreme ruling that suspended the FDA’s 2000 approval of the commonly used abortion drug mifepristone. But the three-judge panel approved part of the Trump judge’s ruling against more recent FDA actions starting in 2016 that improved access to the drug by, among other things, allowing people to receive it by mail and allowing the drug to be dispensed through 10 weeks instead of seven. Further litigation, including potentially at the Supreme Court, could more fully determine the fate of the drug’s availability.
The 5th Circuit panel said it appeared the statute of limitations blocked anti-abortion plaintiffs — who brought the case to U.S. District Judge Matthew Kacsmaryk in Texas — from challenging the 2000 approval, but that the plaintiffs could challenge FDA actions starting in 2016. The panel split 2-1, with two Trump appointees in the majority and a George W. Bush appointee in dissent, saying she would have temporarily blocked Kacsmaryk’s ruling in full while litigation continues. This panel only decided the stay issue, and it will next go to another 5th Circuit panel for further litigation. The government could continue to appeal and seek to fully block Kacsmaryk’s order, leaving the issue still potentially in the Supreme Court’s hands.
The federal government and the drug’s manufacturer, Danco, appealed Kacsmaryk’s April 8 order. A longtime abortion opponent — that’s why the plaintiffs brought the case to him — Kacsmaryk’s opinion purporting to halt the long-used drug’s approval relied on shoddy data, anti-abortion rhetoric and dubious legal reasoning, some of which the 5th Circuit panel on Wednesday appeared to endorse.
In its stay motion on Wednesday, the government warned, of Kacsmaryk’s ruling: “If allowed to take effect, the court’s order would thwart FDA’s scientific judgment and severely harm women, particularly those for whom…
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