AOC and Ron Wyden lead calls for FDA to ignore abortion drug ruling

‘It is up to the Biden administration... to choose whether or not to enforce such a ruling’

President Joe Biden and the US Food and Drug Administration (FDA) should ignore a federal judge’s ruling to revoke approval of a widely used abortion drug, according to Democratic lawmakers, legal analysts and abortion rights advocates.

Hours after a Texas judge threatened to suspend the FDA’s approval of mifepristone on 7 April, US Rep Alexandria Ocasio-Cortez told CNN that right-wing jurists have undermined their legitimacy through the “deeply partisan and unfounded nature” of such rulings.

“It is up to the Biden administration... to choose whether or not to enforce such a ruling,” she said.

Mifepristone is one of two drugs in a two-drug protocol for medication abortion, a procedure that accounts for more than half of all abortions nationwide. It was first approved by the FDA in 2000 for most abortions up to 10 weeks of pregnancy. A vast majority of US abortions occur before the 13th week.

But a lawsuit filed by an influential right-wing legal group and anti-abortion activists has sought to revoke that approval as part of a years-long campaign to outlaw abortion nationwide.

US district judge Matthew Kacsmaryk, who has a history of right-wing activism, determined that the FDA’s initial authorisation of the drug was improper and has suspended its approval, which will take effect in seven days unless a higher court intervenes.

The US Department of Justice is appealing the decision, which has been roundly condemned by the White House, major health organisations and health officials, abortion rights advocates and drug manufacturers.

Democratic senator Ron Wyden, the chair of the Senate Finance Committee, which oversees the FDA, said in a statement that there “is no way this decision has a basis in law”.

“It is instead rooted in conservatives’ dangerous and undemocratic takeover of our country’s institutions,” he added. “No matter what happens in seven days, I believe the [FDA] has the authority to ignore this ruling, which is why I’m again calling on President Biden and the FDA to do just that.”

His remarks echo a speech he delivered on the floor of the US Senate in February, condemning the judge as a “partisan ideologue” and “anti-abortion zealot” as he underscored the role of Congress with the FDA and the statute of limitations to challenges against it.

“President Biden and the FDA must ignore it,” he said in his speech. “Don’t give in to the courtwashing. Protect the fundamental rights and wellbeing of all women in America.The FDA should go on just as it has for the last 23 years since it first approved mifepristone.”

Senator Ron Wyden (Getty Images)

The legal challenge mounted by an influential right-wing legal group, filed specifically in a district court that would likely produce a favourable ruling, tees up an appeal to the US Supreme Court, which now includes a conservative supermajority thanks to appointments from the former president, who has supported the years-long effort to radically reshape the federal judiciary with right-wing, anti-abortion judges.

The FDA, doctors and pharmacies “can and must” continue to dispense mifepristone “like nothing has changed,” Mr Wyden said.

“If they don’t, the consequences of banning the most common method of abortion in every single state will be devastating,” he added.

Republican US Rep Nancy Mace, who has criticised her party’s embrace of extreme anti-abortion proposals, also suggested that the FDA should ignore the ruling.

“This is an issue that Republicans have been largely on the wrong side of,” she told CNN on 10 April.

The decision “should just be thrown out, quite frankly,” she said.

Other top Democratic lawmakers have signalled their support for the Biden administration’s appeal but have not endorsed any measures that could jeopardise that process or risk givinf future Republican administrations a precedent to undermine rulings against them.

US Health and Human Services Secretary Xavier Becerra would not directly address whether he believes the FDA should ignore the ruling, but he said that “everything is on the table” for the administration to respond to the ruling.

“We want the courts to overturn this reckless decision,” he told CNN on 9 April. “Everything is on the table. The president said that way back when the Dobbs decision came out. Every option is on the table.”

“GOP operate in complete contempt for the law until they’re in a position to shred Constitutional [and] human rights,” Ms Ocasio-Cortez added on Twitter.

She invoked the term “agency nonacquiescence,” in which federal agencies neglecting to appeal and refusing to follow certain decisions, pointing to the GOP’s response to a court order against Donald Trump’s administration to fully restore Deferred Action for Childhood Arrivals, the Obama-era programme to shield young immigrants from deportation after arriving in the US as children without legal protection.

“The courts are now going rogue with rulings that no longer even pretend to respect precedent, jurisprudence, or limits to overreach,” she added. “They are long overdue for a check [and] balance. Not doing so paves a dangerous road of worsening abuse of power.”

A separate ruling from a federal judge in Washington state on 7 April ruled that the FDA cannot change the status quo when it comes to mifepristone’s approval, setting up competing decisions involving a critical abortion drug used in more than half of all abortions in the US.

Eliminating or further reducing access to mifepristone will put the future of abortion care in the US at risk, as anti-abortion state lawmakers across the US have sought to increase restrictions on abortion or criminalise abortion care altogether in the wake of the Supreme Court’s decision to revoke a constitutional right to abortion last year.

The conservative-majority court’s decision in Dobbs v Jackson Women’s Health Organization in June 2022 overturned the half-century precedent in Roe v Wade, which affirmed the constitutional right to seek an abortion.

Mr Biden condemned the Texas decision as “the next big step toward the national ban on abortion that Republican elected officials have vowed to make law in America”.

“If this ruling were to stand, then there will be virtually no prescription, approved by the FDA, that would be safe from these kinds of political, ideological attacks,” he said in a statement.

Vice president Kamala Harris said the decision not only “threatens the rights of women nationwide to make decisions about their health care” but also “undermines the FDA’s ability to approve safe and effective medications” with decisions based on politics, not science.

This story was initially published on 7 April and has been updated with developments