Abortion pill decision sparks media firestorm, calls to ignore court ruling

Friday’s court decision on the abortion pill sparked a media firestorm with people praising the ruling, attacking the judge involved, and even calling on the Biden administration not to follow the court’s orders. 

The impact of the decision is far-reaching with more than half of U.S. abortions committed with pills. That method has become even more important for pro-abortion activists after Dobbs allowed states to further restrict abortions in traditional settings.

Last week’s decision stayed the Food and Drug Administration’s 20-year-old approval of mifepristone, one of the medications that make up the abortion pill regimen. The Biden administration quickly notified the court of its appeal on Friday and filed its appeal on Monday. 

Some, however, are suggesting that the administration should ignore the court’s ruling regardless of whether they lose the appeal. 

“I believe the Food and Drug Administration has the authority to ignore this ruling, which is why I’m again calling on President Biden and the FDA to do just that,” Sen. Ron Wyden, D-Ore., said on Friday. “The FDA, doctors, and pharmacies can and must go about their jobs like nothing has changed and keep mifepristone accessible to women across America. If they don’t, the consequences of banning the most common method of abortion in every single state will be devastating.”

Wyden found agreement from Rep. Alexandria Ocasio-Cortez (D-N.Y.) who told CNN that the FDA should ignore the ruling, arguing that judges were engaging in “an unprecedented and dramatic erosion of the legitimacy of the courts.”

Republican Rep. Nancy Mace (R-S.C.) similarly said the FDA should ignore the ruling, prompting a call for protest from Democrats for Life.

It appears as though these legislators may get their wish as Health and Human Services Secretary Xavier Becerra, who oversees the FDA, didn’t rule out ignoring the ruling during an interview with CNN. “Everything is on the table,” he said. And yet, HHS spokeswoman Kamara Jones followed her boss’ interview by tweeting on Sunday that disregarding the court ruling would “set a dangerous precedent for the Administration to disregard a binding decision.”

So far, the White House has limited itself to criticism without publicly encouraging the FDA to flout the ruling. In a press gaggle Tuesday, White House Press Secretary Karine Jean-Pierre said:

As of Friday, the Texas decision has stayed for seven days, as you all know.  This is — the status quo is still in place as it relates to mifepristone, and providers and women being able to access that drug.  And so, that remains.

DOJ has already appealed — has requested a stay, as we just said, and we will continue to fight in the courts to maintain that they stay — that they stay so that women can continue to access mifepristone. 

So, again, we are prevail — we are ready to prevail in the courts.  There’s a process that we’re going through that we’re going to make sure that — that, you know, we win this — we win this on behalf of women across the country.

Other Democratic politicians joined in with criticism but Sen. Catherine Cortez-Masto (D-Nev.) suggested her colleagues went too far in requesting the FDA merely ignore Friday’s decision. “We can’t ignore the ruling,” she told MSNBC host Jen Psaki. “I believe in the rule of law.”

Meanwhile, pro-lifers praised the decision as it removed approval for a pill that helps end countless preborn children’s lives. The regimen itself has been shown to have serious side effects and, with the FDA’s lax guidance, can lead to fatal complications for the mother.

Live Action President Lila Rose tweeted that “[t]his drug has killed 5.6 million children. This ruling must stand & stop the trafficking of lethal abortion drugs that destroy lives.” She added that “[t]aking a drug to intentionally kill an unborn child is not a constitutional right. It’s an act of murder.”

Heritage Foundation Vice President Roger Severino praised Friday’s “stellar opinion” from Matthew J. Kacsmaryk. 

“Great to see a judge acknowledge the plain fact that abortion is not healthcare,” said Severino, who led the HHS Office of Civil Rights under former President Trump. “The pro-abortion left screams it’s about women’s health but FDA didn’t  limit its approval in any way to medical conditions or complications. Rather, FDA deemed the living unborn child itself to be the ‘problem’ and approved a two step chemical regime because the first step kills the child. Moreover,  FDA allowed its use for any reason, which overwhelmingly has nothing to do with maternal health and everything to do with not wanting a child.”

Others were more critical. The New York Times reported Monday on a letter signed by more than 400 leaders of “some of the drug and biotech industry’s most prominent investment firms and companies.”

The letter argued that Kacsymaryk undermined the authority Congress granted to the FDA and accused him of ignoring “decades of scientific evidence and legal precedent.” It added that the decision created more “regulatory uncertainty” that would reduce “incentives for investment” and endanger “the innovation that characterizes our industry.”

It’s unclear how widely available mifepristone will ultimately be when the legal battles over the drug finish. According to Bloomberg, pharmacies are continuing to sell the pill while a judge in Washington has affirmed the FDA’s approval. Two abortion businesses – Trust Women and Whole Woman’s Health – said they would continue prescribing mifepristone despite the order. 

“Medication abortions are still legal and available, and regardless of the outcome of this case, will remain legal and accessible,” Trust Women opined on Twitter. “Judge Kacsmaryk’s ruling alone cannot reverse FDA approval of mife[pristone] and cannot take mife[pristone] off of the shelves.”

At least three states – Washington, California, and Massachusetts – have already started stockpiling abortion medication in apparent anticipation of rulings like Friday’s. As Live Action News previously noted, Washington Gov. Jay Inslee (D) ordered 30,000 pill doses which, combined with another order from the University of Washington, provided a 4-year supply for the state.

On Monday, Gov. Gavin Newsom (D) said that his state had “secured up to 2 million pills of Misoprostol,” which is the second drug in the abortion pill regimen. “CA will not stand idly by,” he tweeted.

Illinois Gov. J.B. Pritzker (D) similarly affirmed the desire to protect abortion in his state. “Abortion including medication abortion remains safe, legal, and accessible in Illinois,” he said, linking to an article noting that he and his attorney general said mifepristone would continue to be available in the state.

Michigan Gov. Gretchen Whitmer similarly said the pill would remain available and that she had worked with insurers to maintain provision in the state. Meanwhile, some abortion providers have announced they would continue providing the pill despite Friday’s decision.

Alliance Defending Freedom, which represents the plaintiffs in this case, has argued that the FDA repeatedly botched its handling of mifepristone over the years:

The U.S. Food and Drug Administration chose politics over science when it pushed for the legalization of the chemical abortion drugs mifepristone and misoprostol in 2000. The only way the FDA was able to approve the drugs was by characterizing pregnancy as an “illness” and arguing that these drugs provide a “meaningful therapeutic benefit.” As the medical groups and doctors filing suit explain, by approving chemical abortion drugs, the FDA failed to abide by its legal obligations to protect the health, safety, and welfare of girls and women.

The FDA never studied the safety of the drugs under the labeled conditions of use, ignored the potential impacts of the hormone-blocking regimen on the developing bodies of adolescent girls, disregarded the substantial evidence that chemical abortion drugs cause more complications than surgical abortions, and eliminated necessary safeguards for pregnant girls and women who undergo this dangerous drug regimen.

Some have noted Republicans’ relative silence on the ruling, suggesting that it was a touchy subject after the decision in Dobbs. Sen. Cindy Hyde-Smith (R-Miss.) and former Vice President Mike Pence did offer their support for the ruling.

“The FDA acted carelessly and with blatant disregard for human life and the well-being of American women, and today’s ruling fixed a 20 year wrong,” Pence said.

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