Two-hundred forty Democratic members of Congress are asking an appeals court to block a Texas judge’s ruling last week that will halt the prescription and distribution of mifepristone, a widely used pill that is used for abortions and to manage early miscarriages.
The lawmakers — 50 senators and 190 House members — signed onto an amicus brief that was submitted to the U.S. Court of Appeals for the Fifth Circuit on Tuesday backing the Biden administration’s appeal of last week’s ruling.
“Emergency relief from the order is necessary to mitigate the imminent harm facing members of the public, many of whom rely on the availability of mifepristone for reproductive care—and many more of whom rely on the integrity of FDA’s drug approval process for continued access to life-improving and lifesaving drugs,” the lawmakers wrote.
“The perils of this unwarranted judicial intervention into science-based determinations can hardly be overstated,” they added.
The brief, which spans 65 pages, argued that the ruling eliminating access to mifepristone was “an extraordinary and unprecedented step” by the district court judge, noting that the federal judiciary has traditionally respected that Congress delegates the drug approval process to scientists and experts with the Food and Drug Administration (FDA).
The lawmakers suggested that the ruling “second-guessed” the FDA.
The FDA has approved the use of mifepristone since 2000.
“The district court appears to have second-guessed FDA’s scientific determination with cherry-picked anecdotes and studies, and on that basis, imposed a remedy that could significantly upend the status quo,” they wrote.
The group also contended that the ruling against mifepristone “will reduce access to abortion, exacerbating an already significant reproductive health crisis,” and warned of the far-reaching effects it could have.
District Court Judge Matthew Kacsmaryk, who was appointed by former President Trump, issued a stay on Friday that will block the prescription and distribution of mifepristone. The judge gave the government a weeklong window to appeal before his ruling goes into effect. The FDA quickly appealed the decision to the 5th Circuit Court of Appeals.
But also on Friday, as part of a separate case, U.S. District Judge Thomas Rice, who was appointed by former President Obama, issued a ruling that blocked the FDA from “altering the status quo and rights as it relates to the availability of Mifepristone” in 17 states and Washington, D.C., directly contrasting with the ruling out of Texas.
The matter could reach the Supreme Court.
Congressional Democrats have ripped the Texas ruling, dubbing it the latest attack on abortion rights after the Supreme Court struck down Roe v. Wade in June.
In their brief, the lawmakers argued that the Texas decision would “exacerbate” the adverse effects that have followed the repeal of Roe.
“Since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, abortion has become inaccessible in much of the United States,” the brief reads. “The resulting delays and denials of care have already had baleful effect on the health of pregnant individuals, for some of whom pregnancy is a life-threatening condition, regardless of their desire to carry their fetus to term.”
“The district court’s order would exacerbate these adverse health outcomes by eliminating access to the most common method of early abortion—a two drug regimen of mifepristone and misoprostol,” it continued, noting that the ruling will also “mean fewer options for treating early pregnancy loss” that could, in some cases, be life-threatening.
The threat posed by the Texas ruling, the lawmakers contended, is not just for mifepristone. They warned that undermining the FDA’s approval of the abortion pill could lead to the same for other drugs.
“The consequences of the district court’s remedy could extend far beyond mifepristone, for it undermines the science-based, expert-driven process that Congress designed for determining whether drugs are safe and effective,” the group wrote. “By disrupting FDA’s two-decade old approval of mifepristone, the district court has interfered with the longstanding statutory framework and erroneously awarded an extraordinary remedy by substituting its judgment for FDA’s scientific determination.”
“As a result, the district court’s order undermines the well-established statutory and regulatory framework for the approval of new drugs and the due process generally accorded to drug marketing application holders by statute. Its perilous consequences reach far beyond mifepristone,” it continued. “Providers and patients rely on the availability of thousands of FDA-approved drugs to treat or manage a range of medical conditions, including asthma, HIV, infertility, heart disease, diabetes, and more.”
Sen. Joe Manchin (W.Va.) was the only Senate Democrat who did not sign the brief. In June, after the Supreme Court overturned Roe, the West Virginia Democrat said he was disappointed in the ruling but noted that he “was raised pro-life and will always consider myself pro-life.”
Senate Majority Leader Chuck Schumer (D-N.Y.) and Sens. Patty Murray (D-Wash.), Dick Durbin (D-Ill.), Bernie Sanders (I-Vt.) and Richard Blumenthal (D-Conn.) led the effort with House Minority Leader Hakeem Jeffries (D-N.Y.), House Minority Whip Katherine Clark (D-Mass.) and Reps. Jerold Nadler (D-N.Y.), Barbara Lee (D-Calif.) and Diana DeGette (D-Colo.).
