Both Sides Argue Over Jurisdiction in Abortion Case
An antiabortion group leading the legal fight against the abortion drug mifepristone (Mifeprex) told the Fifth Circuit Court of Appeals 4/11 that the court does not have jurisdiction to review the lower court’s order because that was an administrative stay and not a preliminary injunction, but the Department of Justice (DoJ) dismissed that argument in a 4/12 reply, contending that court has appellate jurisdiction to review “orders that have the practical effect of an injunction.” They further argued that the antiabortion group, Alliance Defending Freedom, cited no case holding that such stays are unappealable, saying that an order “staying even a discrete agency action pending judicial review is equivalent to a preliminary injunction. Courts routinely note that the standard for a § 705 stay ‘is the same as the standard for issuance of a preliminary injunction.’”
In reaction to DoJ’s 4/10 appeal of the lower court’s order to undo FDA’s 2020 approval of mifepristone, Alliance Defending Freedom filed its opposition brief urging the appeals court to deny the government’s motions for stay of that order. The antiabortion group argued that awarding emergency equitable relief would “perpetuate FDA’s unlawful mail-order abortion regime and result in further harms from a dangerous drug the district court found should never have been approved.”
The Alliance’s brief further contended that FDA had admitted that “pregnancy is not an illness and cannot prove mifepristone provides a therapeutic benefit — the two prerequisites for FDA’s approval here. And FDA’s mail-order approval flagrantly violates the Comstock Act. Nor have defendants shown irreparable harm absent a stay.”
DoJ’s reply argued that there is “no basis in science or fact for plaintiffs’ repeated claims that mifepristone is unsafe when used in the manner approved by FDA. Nor is there any basis in administrative law for the district court’s unprecedented overriding of FDA’s considered scientific judgment.
Additionally, the government’s reply argued that plaintiffs’ “novel theory of legally cognizable injury to doctors rests on a hypothetical and attenuated series of events that might lead women to seek treatment from them for an exceedingly rare adverse event. Their allegations fall far short of establishing standing, let alone irreparable harm from maintaining the status quo pending appeal.”
The two briefs are likely the last from either side as the appeals court could decide as early as 4/13 on whether to grant the government’s request for an emergency stay of the lower court’s order pending appeal, which would allow the continued availability of mifepristone.
Meanwhile, all 23 Democrat Representatives on the House Energy and Commerce Committee have requested that the Republican committee leaders immediately schedule a hearing on the unprecedented decision handed down by the lower court. In a 4/12 letter, the lawmakers said they were worried about its “far-reaching effects beyond abortion access, by second-guessing the expertise of our public health agencies and creating uncertainty for Americans who rely on life-saving medications approved by FDA every day… Given the implications of this decision, we believe it is important for the committee to hear from experts about how the outcome of this case attempts to undermine the drug approval process, restricts access to an FDA-approved medication, and places ideology, politics, and judicial activism above science.”