Antiabortion group says appeals court lacks authority to block Texas abortion pill ruling

The antiabortion group at the center of a legal fight over the abortion pill mifepristone told a U.S. appeals court that it does not have jurisdiction to block the Texas ruling which suspended the Food and Drug administration’s approval of the drug.

The Alliance Defending Freedom’s lead attorney, Erik Baptist, argued in a new filing to the U.S. 5th Circuit Court of Appeals late Tuesday that the court lacks authority to grant the Justice Department’s request to block the decision. The lawyer for the plaintiffs argued the court does not have jurisdiction because U.S. District Judge Matthew Kacsmaryk did not issue an injunction ordering the FDA to withdraw mifepristone.

Instead, Kacsmaryk unilaterally suspended the FDA’s Sept. 28, 2000 approval of mifepristone pending further litigation. His decision is set to take effect a 12 a.m. Saturday central time if the 5th Circuit does not block it. At that point, mifepristone would no longer be an approved drug in the U.S., which means it can’t be distributed for abortions.

Baptist made a technical argument that Kacsmaryk’s decision to suspend the approval date cannot be appealed to the 5th Circuit under federal law, in contrast to an injunction or a final court decision. He argued that the case should continue to play out in the U.S. Northern District of Texas.

“Accordingly, this Court should dismiss Defendants’ appeal for lack of jurisdiction,” Baptist argued.

The Justice Department and Danco Laboratories, the company that distributes mifepristone, said in their motion to the 5th Circuit on Monday that they will ask the Supreme Court to intervene in the case if necessary.

The Alliance Defending Freedom sued the FDA in the U.S. Northern District of Texas in November, arguing that the agency did not use the proper process to approve mifepristone in 2000. It also contended the medication is unsafe. Kacsmaryk embraced those claims in his ruling last week.

The FDA, at least 23 states, hundreds of members of Congress, leading medical associations, and drug law experts all strongly dispute the group’s claims. They argue that the FDA approved mifepristone using its authority delegated by Congress, and that the evidence overwhelmingly demonstrates that the medication is a safe and effective way to terminate an early pregnancy.

In addition to the Justice Department, nearly half the states in the U.S. have called on the 5th Circuit to block Kacsmaryk’s ruling, warning that the judge’s order threatens abortion even in states that have protected access to the procedure in the wake of the Supreme Court’s decision to overturn Roe vs. Wade last summer.

Mifepristone, used in combination with another drug called misoprostol, is the most common method to terminate a pregnancy in the U.S., accounting for about half of all abortions, according to the Centers for Disease Control and Prevention.

The Alliance Defending Freedom worked with Mississippi lawmakers to draft the law at the center of Dobbs v. Jackson Women’s Health Organization. That case ultimately resulted in the Supreme Court overturning Roe v. Wade, the 1973 ruling that guaranteed abortion rights nationwide.

The Alliance Defending Freedom represents a group of physicians who oppose abortion called the Alliance for Hippocratic Medicine in the case against the FDA.