Kacsmaryk says mifepristone approval to be halted; second judge says FDA approval stays

The conservative Trump appointee accepted many of the anti-abortion groups' most extreme arguments. The rulings could quickly come into conflict, making a quick trip to SCOTUS more likely.

Two Friday rulings in challenges relating to the federal government’s longstanding approval of mifepristone, one of the two drugs used in medication abortions, have the possibility of upending abortion healthcare — and the federal courts — in America.

First, U.S. District Judge Matthew Kacsmaryk — a far-right Trump appointee — issued a ruling Friday evening that purports to stay the U.S. Food and Drug Administration’s approval of mifepristone, but he has put his ruling on hold for seven days to allow the government to appeal.

Moments later, U.S. District Judge Thomas Rice — an Obama appointee who had been a prosecutor before taking the bench — issued a ruling barring the FDA from “altering ... the availability” of mifepristone under current rules in a lawsuit brought in Washington state by the Democratic attorneys general of several states.

Rice’s ruling applies only to those plaintiff states, but, were Kacsmaryk’s ruling to go into effect, the two would conflict because Kacsmaryk’s ruling would put the FDA’s 2000 approval of mifepristone on hold — a ruling that would apply nationwide.

The Department of Justice, as well as intervenor Danco Laboratories (the maker of Mifeprex), have both already filed their notices that they are appealing Kacsmaryk’s ruling to the U.S. Court of Appeals for the Fifth Circuit.

Kacsmaryk, who has already faced criticism for his handling of the case, not only accepted and advanced many of the most extreme positions advocated for by the anti-abortion organizations that brought the challenge to court, he also did so in a way that made abundantly clear his personal views.

From the first footnote of his opinion — where Kacsmaryk detailed his plan in the opinion not to use the word “fetus” — to his repeated use of the word “abortionists,” the opinion often read more like an anti-abortion rally speech than a legal opinion.

Kacsmaryk’s ruling followed a March 15 hearing in which it appeared almost unfathomable that a fair jurist would rule in favor of the challengers on their broadest challenge to the underlying 2000 approval of mifepristone. As I wrote at the time, “DOJ and Danco’s lawyers made as strong a case as possible that Kacsmaryk would be going far afield of the law by doing anything about the 2000 approval of mifepristone, especially with these plaintiffs on these facts.”

And yet, on Friday evening, after accepting extreme argument after extreme argument, Kacsmaryk sided with the plaintiffs in his ruling. At one point, on page 64 of his ruling, he went so far as to suggest that the Justice Department’s arguments were aligned with eugenics, a longstanding argument advanced by anti-abortion extremists.

In the other case, the challenging Democratic attorneys general filed a lawsuit in February specifically seeking a ruling that would affirm the legality of the FDA’s approval of mifepristone and challenge limits on its use — in some ways, a mirror case of that brought by the anti-abortion groups in Texas.

In that case, Rice declined to issue a nationwide injunction in part because of the case before Kacsmaryk.

As such, here was Rice’s main order:

For Kacsmaryk, however, here was his order:

Expect much more on this — additional details on the rulings, the fallout from Kacsmaryk’s extremist opinion and ruling, and news on the potential conflict between the rulings — in the coming days.

This story was expanded and updated after initial publication, with the final update at 2:30 a.m. April 8.