> ## Content Index
> Fetch the complete content index at: https://www.fdaweb.com/llms.txt
> Use this file to discover other available public pages before exploring further.

# Kavanugh Rulings For and Against FDA
- URL: https://www.fdaweb.com/kavanugh-rulings-for-and-against-fda/
- Published: 2018-07-11T12:00:00.000Z
- Updated: 2026-09-15T00:18:49.000Z
- Author: David McFarland
- Tags: Drugs, Devices, #legacy-id-D5141846

In 12 years on the DC Court of Appeals, Supreme Court nominee **Brett Kavanaugh** has helped decide some cases in favor of FDA, while ruling against the agency in others. A *Stat News* [analysis](https://www.statnews.com/2018/07/10/brett-kavanaugh-cases/?ref=fdaweb.com) reports that Kavanaugh was part of an 8-2 majority when the appeals court upheld a ruling that terminally ill patients had no constitutional right to access unapproved drugs. The Supreme Court declined to hear an appeal, effectively maintaining the FDA approach to providing access to experimental drugs.

In 2013 the judge also sided with the agency in a case in which Cytori Therapeutics sued it after the agency denied fast-track approval to devices intended to extract stem cells from fat tissue. In that instance, Kavanaugh urged deference to FDA and other federal scientific agencies. “A court,” he wrote, “is ill-equipped to second-guess that kind of agency scientific judgment” as it pertains to federal agency procedure.

*Stat* reports that Kavanaugh ruled against FDA in 2014, identifying flaws in the agency’s decision to approve marketing rights for a surgical mesh and its failure to follow procedure in rescinding those marketing rights. In that opinion, he scolded the agency for its “inability or unwillingness to identify those wrongdoers” and said it was “notable” that no senior FDA officials were disciplined for the agency’s lapses.

A [review](https://www.law.com/nationallawjournal/2018/07/10/kavanaugh-on-health-care-how-might-he-rule-as-a-supreme-court-justice/?slreturn=20180611135317&ref=fdaweb.com) of Kavanaugh’s decisions by the *National Law Journal* points to two of the same cases, along with his role on a three-judge panel that said FDA lacked authority to regulate e-cigarettes as drugs or medical devices as long as they are not marketed as smoking cessation products or for other therapeutic uses.

The two analyses also look at Kavanaugh’s rulings on the Affordable Care Act and on issues involving abortion rights.