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      To protect abortion access, the FDA should decline to enforce a mifepristone ban | David S Cohen, Greer Donley and Rachel Rebouché

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      On Friday, the nation faced dueling decisions from federal judges regarding the first drug in a medication abortion: mifepristone. A judge in Texas ruled that the Food and Drug Administration (FDA) likely improperly approved the drug, putting mifepristone’s approval on hold while the case plays out (though this order won’t take effect until late Friday this week). Minutes later, a judge in Washington state ruled that the FDA could not change the status quo regarding mifepristone’s availability.In response to these two cases and two other less-publicized cases involving the FDA and medication abortion, the agency needs to chart a course consistent with its mission to protect patient health and to follow the evidence. As the Biden administration has stated, protecting medication abortion is a public health imperative now that states can ban all abortion outright. If the agency does not respond to these conflicting rulings in a manner tailored to provide the greatest access possible to medication abortion, it will be telling of Biden’s commitment to reproductive justice.Though the case in Texas has garnered enormous attention, it is not the only case thrusting the FDA into the center of the abortion debate. The others have the opposite goal of improving access to the drug. The litigation in Washington state, not widely discussed until Friday, centered around the FDA’s special and onerous regulation of medication abortion. Eighteen state attorneys general sued the FDA arguing that the agency’s overregulation is not justified by the statute or the drug’s safety and must be lifted. If successful on appeal, this would ensure mifepristone is treated like other prescription drugs – prescribed through any provider and accessible at any pharmacy.Plaintiffs in two other cases are pushing even further, trying to use the FDA’s special regulation of mifepristone to argue that a state cannot ban or overregulate the drug. These lawsuits, filed respectively by the generic manufacturer of mifepristone in West Virginia and a physician in North Carolina, might restore access to medication abortion across the country. The plaintiffs argue that federal approval of mifepristone trumps state abortion laws, essentially forcing all states to allow medication abortion as regulated by the FDA.The FDA is caught in the crosshairs. Though the agency prides itself on scientific independence and seeks to avoid the appearance of partisanship, any reaction the agency has to these cases – even a decision not to act – will appear political to one side. Nonetheless, the FDA must push forward to ensure access to this critical drug.Starting with the two cases just decided, the agency can comply with both by announcing that it will exercise enforcement discretion. Enforcement discretion allows the agency to provide safe harbor for technical violations of law. So even if mifepristone becomes an unapproved drug per the Texas order, the agency could announce that it would not pursue action against the entities that market or dispense the drug to maintain the status quo as required by the Washington case.This would not require the agency to “ignore” the Texas order, as some have suggested. Rather, enforcement discretion is a normal part of the FDA’s operation and only relevant if the drug becomes unapproved as ordered. The FDA could exercise this discretion without being ordered to by the Washington court, but the Washington case provides enormous political cover for the agency to use this discretion.Repercussions for patient and public health could result from the FDA failing to clearly exercise its enforcement discretion. Clinicians may turn to a different medication abortion regimen that does not include mifepristone and is outside of current FDA regulation. Though alternative regimens will be vital to maintaining abortion access if mifepristone becomes inaccessible, they are slightly less effective and, more importantly, will upend what has been the uniform, established protocol for a medication abortion in the United States for over two decades. Relatedly, confusion is sure to reign after the Texas decision unless the FDA speaks in a clear and timely voice. Already, certain abortion providers have indicated that they will continue to dispense mifepristone regardless of the order in Texas unless the FDA tells them they cannot.As requested by plaintiffs in the Washington case, the FDA could also start the process to remove the unnecessary barriers to accessing mifepristone, which every relevant medical organization agrees are not medically necessary. These barriers make abortion less accessible without any benefit for patient safety. Though the FDA has repealed parts of these unduly restrictive rules over the last decade, the FDA should abandon the remaining restrictions, which are also contradicted by the best evidence. These policies do not make the agency seem evenhanded; they make it seem unscientific. The agency should not wait for the Washington court to order this – it should start the process now.In the pre-emption cases, the FDA could help the effort to restore access to early abortion in states with abortion bans by embracing the theory that the federal agency’s regulation of medication abortion trumps state law. The Department of Justice has already signaled its agreement, but the FDA has been silent. The FDA has spent decades assessing the risks and benefits of medication abortion, examining and re-examining the evidence even decades after its approval in 2000. States should not be able to override that authority and create a public health crisis by banning a safe and effective medication.The agency, however, has appeared unwilling to remove the remaining unnecessary barriers to mifepristone or support pre-emption at this juncture. Indeed, it has said nothing about pre-emption and is opposing the attorneys general in the Washington case – a fact that may surprise people who think the Biden administration is doing all it can to support abortion access. Given the current public health crisis, the FDA must be bolder in its support of reproductive healthcare.Try as it might, the FDA cannot escape the abortion debate. Instead of trying to play both sides, the agency must act now by following the science and protecting the public’s health to the best of its ability. Protecting access to safe abortion is the way to do that.
      David S Cohen, a law professor at Drexel University, is a co-author of Obstacle Course: The Everyday Struggle to Get an Abortion in America, a board member of the Abortion Care Network and a consulting attorney with the Women’s Law Project
      Greer Donley is a law professor at the University of Pittsburgh and a board member of the Women’s Law Project
      Rachel Rebouché is the dean of the Temple University Beasley School of Law and a faculty fellow at the Center for Public Health Law Research More

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      Fate of US abortion drug hangs in balance ahead of Friday deadline

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      FDA authorization for a key abortion drug could be nullified after Friday, unless an appeals court acts on a Biden administration request to block last week’s ruling suspending approval of the drug.The drug, mifepristone, is used in more than half of all the abortions in the US. The ruling, issued by a federal judge in Texas, applies across the country.Writing that the ruling would “inflict grave harm on women, the medical system, and the public” if it went into effect, the Department of Justice on Monday requested the fifth US circuit court of appeals temporarily block Judge Matthew Kacsmaryk’s ruling while the appeals process plays out.The issue may ultimately fall into the hands of the US supreme court and its conservative supermajority, which eradicated abortion rights last year by overturning Roe v Wade.Kacsmaryk stayed his decision for seven days to allow the Biden administration time to appeal. Shortly after the ruling from Texas, Obama-appointed Washington district judge Thomas Rice issued a contradictory ruling that directs the FDA to keep the drug available in 17 states.The dueling opinions set the stage for the supreme court to possibly intervene.“On one hand, you have a ruling that says to defer to the expertise of the FDA and keep the status quo while another says to second-guess the FDA with junk science,” says David S Cohen, law professor at Drexel University, who focuses on reproductive rights.“When you have different rulings from different federal courts it is more likely for the US supreme court to get involved.”The New Orleans-based appellate court is one of the most conservative in the US. Republican appointees comprise three-quarters of its bench, with six judges nominated by former President Donald Trump. The court has routinely ruled against the Biden administration and on behalf of Texas’s abortion laws.If the appeals court declines to put a hold on Kacsmaryk’s ruling, then the Biden administration would likely appeal to the high court.“It’s possible that the mifepristone issue makes its way to the [Supreme] Court this week, either because the Fifth Circuit refuses to even temporarily pause Kacsmaryk’s ruling, or because it takes too long to do anything,” writes Steve Vladeck, a constitutional law professor at The University of Texas.In his ruling, Kacsmaryk echoed the arguments of the anti-abortion groups that brought the case, writing that the FDA disregarded science that the drug causes harm, despite repeated studies finding it extremely safe. Legal experts say that the decision – the first time the judiciary has intervened to overturn FDA approval of a drug – could create a precedent that throws the entire drug approvals system into disarray.More than 250 pharmaceutical and biomedical companies who strongly denounced Kacsmaryk’s ruling in an open letter and warned that it could upend the FDA approval process as well as the entire US healthcare system.“Judicial activism will not stop here,” they cautioned. “If courts can overturn drug approvals without regard for science and evidence, or for the complexity required to fully vet the safety and efficacy of new drugs, any medicine is at risk for the same outcome as mifepristone.”Mifepristone is used for abortion, miscarriage management and other medical care. If access to the drug is upended, abortion providers have said they will continue to prescribe the second of the two-drug protocol for abortions. However, that drug, misoprostol, has been found to be somewhat less effective and associated with more painful side effects than the combination of pills.With the mifepristone in doubt, the Biden administration asked Rice, the district judge in Washington, for clarification on how to proceed if the Texas ruling goes into effect, given that his decision orders the government to take no action that would hinder its availability.Legal experts have argued that the FDA does not need to enforce Kacsmaryk’s ruling, even if it goes into effect.The ruling does not formally compel the FDA to seize the pills and take them off the market, Cohen says, and leaves the door open for the Biden administration to apply what’s called “enforcement discretion”, which would entail issuing guidance protecting the distribution of mifepristone. In the past, the FDA has granted drug manufacturers this type of safe harbor even in the absence of agency authorization, including for infant formula.“The ruling does not force the FDA to do anything,” says Cohen. “It’s up to the FDA to determine what to do next. They can use enforcement discretion to protect access to mifepristone. We shouldn’t read into Kacsmaryk’s ruling as having more power than it does – it is limited – and there’s a huge amount of authority the FDA can retain.” More

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      Pressured by Their Base on Abortion, Republicans Strain to Find a Way Forward

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      Some in the party are urging compromise, warning of dire electoral consequences for 2024, while other stances, on guns and gay rights, also risk turning off moderates.Republican leaders have followed an emboldened base of conservative activists into what increasingly looks like a political cul-de-sac on the issue of abortion — a tightly confined absolutist position that has limited their options ahead of the 2024 election season, even as some in the party push for moderation.Last year’s Supreme Court decision overturning a woman’s constitutionally protected right to an abortion was supposed to send the issue of abortion access to the states, where local politicians were supposed to have the best sense of the electorate’s views. But the decision on Friday by a conservative judge in Texas, invalidating the Food and Drug Administration’s 23-year-old approval of the abortion pill mifepristone, showed the push for nationwide restrictions on abortion has continued since the high court’s nullification of Roe v. Wade.Days earlier, abortion was the central theme in a liberal judge’s landslide victory for a contested and pivotal seat on the state Supreme Court in Wisconsin. Some Republicans are warning that the uncompromising position of their party’s activist base could be leading them over an electoral cliff next year.“If we can show that we care just a little bit, that we have some compassion, we can show the country our policies are reasonable, but because we keep going down these rabbit holes of extremism, we’re just going to keep losing,” said Representative Nancy Mace, Republican of South Carolina, who has repeatedly called for more flexibility on first-term abortions and exceptions for rape, incest and the life and health of the mother. “I’m beside myself that I’m the only person who takes this stance.”She is far from the only one.The chairwoman of the Republican National Committee, Ronna McDaniel, has been showing polling to members of her party demonstrating that Americans largely accept abortion up to 15 weeks into a pregnancy and support the same exemptions that Ms. Mace wants. Dan O’Donnell, a conservative radio host in Wisconsin, wrote after the lopsided conservative defeat in the state Supreme Court contest that abortion was driving young voters to the polls in staggering numbers and that survival of the party dictated compromise.“Because we keep going down these rabbit holes of extremism, we’re just going to keep losing,” said Representative Nancy Mace of South Carolina, a Republican who supports flexibility on abortion rights.Kenny Holston/The New York Times“As difficult as this may be to come to grips with, Republicans are on the wrong side politically of an issue that they are clearly on the right side of morally,” he wrote.The problem goes beyond abortion. With each mass shooting, the G.O.P.’s staunch stand against gun control faces renewed scrutiny. Republicans courted a backlash last week when they expelled two young Democratic lawmakers out of the Tennessee state legislature for leading youthful protests after a school shooting in Nashville that left six dead. Then on Monday came another mass shooting, in Louisville, Ky.“My kids had friends on Friday night running for their lives,” said Ms. Mace, referring to a shooting on South Carolina’s Isle of Palms, which elicited no response from most of her party. “Republicans aren’t showing compassion in the wake of these mass shootings.”The party’s stand against legislation to combat climate change has helped turn young voters into the most liberal bloc of the American electorate. And Republican efforts to roll back L.G.B.T.Q. rights and target transgender teenagers, while popular with conservatives, may be seen by the broader electorate as, at best, a distraction from more pressing issues.Representative Mark Pocan, an openly gay Democrat from Wisconsin, said on Monday that in the short term, the Republican attacks on transgender Americans were having a real-world effect, with a rise in violence and bigotry. But he said it is also contributing to the marginalization of the party, even in his swing state.He pointed to the “WOW counties” that surround Milwaukee — Waukesha, Ozaukee and Washington — where then-Republican Gov. Scott Walker won 73 percent in 2014, and where the Republican, Dan Kelly, won 58.7 percent in the state Supreme Court race last week.“We keep seeing our numbers increase in those counties because those Republicans largely are economic Republicans, not social Republicans,” Mr. Pocan said, adding that G.O.P. candidates “definitely are chasing their people away.”Ms. Mace does appear to be correct that her desire for compromise is not widely shared in a party where analysts continue to look past social issues to explain their electoral defeats.Ronna McDaniel, the chairwoman of the Republican National Committee, has been showing polling to members of her party about Americans’ views on abortion.Doug Mills/The New York TimesMr. Kelly was a poor candidate who lost by an almost identical margin in another state Supreme Court race in 2020, noted David Winston, a longtime pollster and strategist for House Republican leaders. And, Mr. Winston added, Republicans may have lost female voters by 8 percentage points in the 2022 midterm elections, but they lost them by 19 points in 2018.If inflation and economic concerns remain elevated, he added, the 2024 elections will be about the economy, not abortion or guns..css-1v2n82w{max-width:600px;width:calc(100% – 40px);margin-top:20px;margin-bottom:25px;height:auto;margin-left:auto;margin-right:auto;font-family:nyt-franklin;color:var(–color-content-secondary,#363636);}@media only screen and (max-width:480px){.css-1v2n82w{margin-left:20px;margin-right:20px;}}@media only screen and (min-width:1024px){.css-1v2n82w{width:600px;}}.css-161d8zr{width:40px;margin-bottom:18px;text-align:left;margin-left:0;color:var(–color-content-primary,#121212);border:1px solid var(–color-content-primary,#121212);}@media only screen and (max-width:480px){.css-161d8zr{width:30px;margin-bottom:15px;}}.css-tjtq43{line-height:25px;}@media only screen and (max-width:480px){.css-tjtq43{line-height:24px;}}.css-x1k33h{font-family:nyt-cheltenham;font-size:19px;font-weight:700;line-height:25px;}.css-1hvpcve{font-size:17px;font-weight:300;line-height:25px;}.css-1hvpcve em{font-style:italic;}.css-1hvpcve strong{font-weight:bold;}.css-1hvpcve a{font-weight:500;color:var(–color-content-secondary,#363636);}.css-1c013uz{margin-top:18px;margin-bottom:22px;}@media only screen and (max-width:480px){.css-1c013uz{font-size:14px;margin-top:15px;margin-bottom:20px;}}.css-1c013uz a{color:var(–color-signal-editorial,#326891);-webkit-text-decoration:underline;text-decoration:underline;font-weight:500;font-size:16px;}@media only screen and (max-width:480px){.css-1c013uz a{font-size:13px;}}.css-1c013uz a:hover{-webkit-text-decoration:none;text-decoration:none;}How Times reporters cover politics. We rely on our journalists to be independent observers. So while Times staff members may vote, they are not allowed to endorse or campaign for candidates or political causes. This includes participating in marches or rallies in support of a movement or giving money to, or raising money for, any political candidate or election cause.Learn more about our process.Republicans greeted the abortion-drug ruling on Friday, by Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas, with near total silence. The judge gave the Biden administration seven days to appeal, and on Monday, senior executives of more than 250 pharmaceutical and biotech companies pleaded with the courts to nullify the ruling with a scorching condemnation of Judge Kacsmaryk’s reasoning.Most anti-abortion advocates are not backing down. Katie Glenn Daniel, the state policy director for Susan B. Anthony Pro-Life America, one of the most powerful anti-abortion groups, said Wisconsin’s results were more about anti-abortion forces being badly outspent than about ideology. In her state, Florida, she noted, Democrats scorched Republicans with advertising in 2022 saying they planned to ban abortion without exceptions. Republicans, from Gov. Ron DeSantis on down, easily prevailed that November.Republicans need to keep pressing with abortion restrictions that will affect Democratic states as well as Republican ones, she said.“A national minimum standard is incredibly important. Without it there will continue to be late-term abortions, and governors like Gavin Newsom are very motivated to force his views on the rest of the country,” she said of California’s Democratic governor.Last week, the Florida State Senate approved legislation pushing the state’s ban on abortion from the current 15 weeks into pregnancy to six weeks. If the state’s House of Representatives approves it, Mr. DeSantis has said he will sign it. If Mr. DeSantis runs for president as expected, his signature would thrust abortion squarely into the 2024 race for the White House.Last year, John P. Feehery, a former Republican leadership aide in the House, urged his party to find a defensible position on abortion that included flexibility on abortion pills, allowed early pregnancies to be terminated and detailed a coherent position on exceptions for rape, incest and health concerns. He said on Monday that he was repeatedly told abortion would be a state-level issue and federal candidates should just stay quiet.“They didn’t want to do the hard work on abortion,” he said, blaming “a lack of leadership” in the party that still has the Republican position muddled.Guns are another issue where silence is not working. The shooting in Louisville, which left six dead, including the gunman, and eight wounded, kept the issue of guns in the spotlight after last week’s heated showdown in Tennessee — and ahead of a three-day gathering of the National Rifle Association on Friday in Indianapolis. The Kentucky attack was the 15th mass shooting this year in which four or more victims were killed, the largest total in a year’s first 100 days since 2009, according to a USA Today/Associated Press/Northeastern University database.“You can’t stop paying attention after one horrible event happens. You have to watch what happens afterward,” said Representative Maxwell Frost, 26, a Florida Democrat who last year became the first member of Generation Z to be elected to the House.Voices for compromise are beginning to bubble up, in some cases from surprising sources. Carol Tobias, president of the National Right to Life Committee, one of the country’s largest anti-abortion groups, said on Monday that even she was “somewhat concerned” that the Republican Party might be getting ahead of the voters on abortion. Her organization has drafted model legislation to ban abortion at the state level in every case but when the life of the mother is in grave danger. But, Ms. Tobias said, that legislation comes with language to extend those exceptions to the “hard cases,” pregnancies that result from rape or incest, or that might harm a mother’s health.“We’ve always known the American public does not support abortion for all nine months of a pregnancy,” she said. “They want some limits. We are trying to find those limits.”She added, “If we can only at this time save 95 percent of the babies, I am happy to support that legislation.” More

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      ‘We will not cave’: governors stockpile abortion drugs as access is threatened

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      Several Democratic governors have moved swiftly to protect access to medication abortion in their states after a ruling by a Texas judge late last week threatened access to the widely used abortion drug mifepristone.In an announcement on Monday, Governor Maura Healey of Massachusetts said her state had ordered about 15,000 doses of mifepristone, the first of two drugs in a medication abortion regimen that has been approved for use up to the 10th week of pregnancy.Healey also issued an executive order that she said would help protect access to medication abortions and shield providers who perform them.In California, Governor Gavin Newsom, also a Democrat, said his state had secured an emergency stockpile of up to 2m pills of misoprostol, the second drug in the regimen that can be used safely on its own, though is slightly less effective as a single medication. That drug, which is used to treat other medical conditions, is also being targeted by anti-abortion groups seeking to remove it from the market.“In response to this extremist ban on a medication abortion drug, our state has secured a stockpile of an alternative medication abortion drug to ensure that Californians continue to have access to safe reproductive health treatments,” Newsom said in a statement. “We will not cave to extremists who are trying to outlaw these critical abortion services. Medication abortion remains legal in California.”Their actions come after US district judge Matthew Kacsmaryk, an appointee of Donald Trump known for his anti-abortion views, issued a ruling late on Friday that invalidated the 23-year-old approval of mifepristone by the Food and Drug Administration (FDA). On the same night, a federal judge in Washington state issued a contradictory ruling that ordered the FDA to maintain the drug’s approval in at least 17 states where Democrats had sued.On Monday, the US justice department appealed the Texas ruling, asking a federal appeals court to place a hold on the “extraordinary and unprecedented order”. Underscoring the legal uncertainty surrounding the dueling orders, the administration separately asked the federal court in Washington state for clarity.With access to the drug imperiled, and Democrats stymied in Washington by the Republican majority in the House of Representatives, a handful of liberal state governors said they were taking matters into their own hands.“A judge has made a politically motivated decision to override doctors, patients and medical experts and block access to critical medications,” Healey said on Monday, unveiling the plan at a press conference outside the Massachusetts statehouse in Boston. “Today, we collectively are saying loud and clear: not on our watch.”In anticipation of the Texas ruling, the Democratic governor of Washington, Jay Inslee, announced last week that his state would stockpile a three-year supply of mifepristone in the event the drug became more difficult to access. Days later, Kacsmaryk issued his ruling.Several other Democratic governors and state attorneys general have condemned the ruling while seeking to make clear that, at least for now, the drug remains available. Some went further, promising to keep medication abortion legal and accessible in their states, although without providing further details.More than half of abortions in the US rely on medication abortion, and most of those involve the two-drug protocol. If the appeals court doesn’t intervene, the Texas ruling would take effect on Friday with far-reaching implications for access.The FDA approved mifepristone to terminate pregnancy in 2000, when used with misoprostol. Despite claims made in the Texas lawsuit, there is decades’ worth of scientific research concluding that mifepristone is safe.States have become the epicenter of the fight over abortion rights since the supreme court’s landmark decision last June to overturn Roe v Wade. Since then, more than a dozen Republican-led states have enacted abortion bans or severely restricted access to the procedure.​Anti-abortion groups have long targeted medication abortion, the most common method for terminating a pregnancy in the US. But it became the focus of efforts after the supreme court’s landmark decision last June to overturn Roe v Wade, allowing states to regulate abortion.Although more than a dozen Republican-led states moved quickly to ban or severely restrict abortions​, with scores of new limits pending before state legislatures this session, Democratic-led states have pushed in the opposite direction. Yet if the Texas ruling stands, experts say it would upend access nationwide, limiting the drug even in states where abortion is legal.Abortion opponents in blue states denounced the efforts by Democratic governors to preserve access to medication abortion.“It is appalling that Gavin Newsom is so obsessed with ending the lives of children in the womb that he is attempting to stockpile dangerous and potentially illegal drugs,” California Family Council president Jonathan Keller wrote on Twitter. “California again proves the only ‘choice’ they care about is abortion.”Newsom said the judge’s ruling “ignores facts, science and the law” in a way that puts “the health of millions of women and girls at risk”.“Abortion is still legal and accessible here in California and we won’t stand by as fundamental freedoms are stripped away,” he said.Other supporters of abortion rights similarly denounced the conservative judge’s decision on abortion as “unprincipled” and out of step with the American public. In states where the issue has been put on the ballot, from right-leaning Kansas to battleground Michigan and liberal Vermont, voters have opted to preserve or expand access.“I’ve fought like hell to protect abortion access and I’m not backing down,” Michigan’s governor, Gretchen Whitmer, said on Friday. “I will keep taking steps to expand access to reproductive healthcare and fight against anyone threatening our rights.”Whitmer recently signed legislation repealing the state’s nearly century-old abortion ban, after Michigan voters overwhelmingly approved a ballot initiative in November to enshrine abortion protections into the state constitution.Democrats and reproductive rights advocates believe the issue will continue to motivate voters in the coming election cycles after lifting them to victories across the country in the 2022 midterms. Last week’s election of a liberal judge to serve on the Wisconsin supreme court brought fresh evidence of the enduring potency of abortion politics.“This decision will only enrage Americans further and move them to more action,” Mini Timmaraju, president of the Naral Pro-Choice America advocacy group, said on a call with reporters on Monday. “Our eyes are on 2023 and 2024 – 2022 was just the beginning.” More

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      US appeals Texas judge’s ruling to suspend abortion pill approval

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      The US government on Monday appealed a Texas judge’s decision to suspend the Food and Drug Administration’s 23-year-old approval of a key abortion drug, saying the ruling endangered women’s health by blocking access to a pill long deemed safe.In a filing with the 5th US circuit court of appeals, the Department of Justice (DoJ) called judge Matthew Kacsmaryk’s decision on the drug mifepristone “especially unwarranted” because it would undermine the FDA’s scientific judgment and harm women for whom the drug is medically necessary.The DoJ also said the anti-abortion groups that sought to overturn the FDA’s approval had no right to sue in the first place, saying they could not show they were harmed and had left the approval unchallenged for years.Kacsmaryk’s decision “upended decades of reliance by blocking FDA’s approval of mifepristone and depriving patients of access to this safe and effective treatment, based on the court’s own misguided assessment of the drug’s safety,” the department said.Lawyers for the anti-abortion groups did not immediately respond to requests for comment.Kacsmaryk, a district judge appointed by former Republican president Donald Trump, had ruled on Friday that the FDA exceeded its authority by ignoring mifepristone’s risks and relying on “plainly unsound reasoning” when approving it.The judge, who works in Amarillo, Texas, stayed his ruling for seven days to allow the Biden administration time to appeal.In Monday’s filing, the justice department asked that Kacsmaryk’s stay remain in place until all appeals, including if necessary to the US supreme court, are resolved.Mifepristone is part of a two-drug regimen, also including misoprostol, for medication abortions in the first 10 weeks of pregnancy. The drugs account for more than half of all US abortions.Kacsmaryk ruled just 18 minutes before a federal judge in Washington state issued a contradictory ruling that directed the FDA to keep the drug available in 17 states.In a Monday filing in that case, the justice department asked the judge there to clarify what should happen if Kacsmaryk’s order took effect.The conflicting rulings could foreshadow a resolution by the supreme court, which last June overturned the 1973 Roe v Wade decision, eliminating a constitutional right to abortion.The supreme court has a 6-3 conservative majority. The New Orleans-based fifth circuit also has a conservative reputation, with three-quarters of its active judges appointed by Republican presidents.“This administration stands by the FDA and is prepared for this legal fight, and we will continue our work to protect reproductive rights,” White House spokesperson Karine Jean-Pierre said.Monday’s appeal came in a case brought by anti-abortion groups led by the Alliance for Hippocratic Medicine, which was formed last August.They accused the FDA of failing to consider during its approval process for mifepristone the drug’s safety when used by girls under age 18.The plaintiffs sought a sympathetic court by suing in Amarillo, where Kacsmaryk is the only federal district judge.Kacsmaryk had written critically about Roe v Wade, and the former Christian legal activist’s courtroom is a popular destination for conservatives challenging Biden policies.Twelve US states ban abortion, while 14 others ban it at some point after six to 22 weeks of pregnancy, according to the nonprofit Guttmacher Institute, which supports abortion rights. More

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      Clarence Thomas Decided Against the Staycation

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      Bret Stephens: Just for a change, Gail, let’s start with something other than Donald Trump. How about … Clarence Thomas’s junkets?Gail Collins: Absolutely! When Justice Thomas isn’t busy announcing that the Supreme Court could do to contraception what it did to abortion rights, he’s apparently been happily taking luxury yacht and jet trips with his great old friend the billionaire Republican megadonor and Nazi memorabilia collector Harlan Crow. Along with Thomas’s wife Ginni — I guess she was taking time off from trying to overturn the 2020 election.Bret: You know, every time I try and fail to overturn an election, a nice $500,000 vacation in Indonesia helps salve the disappointment.Gail: Bret, I presume the happy couple was having a great holiday weekend despite all the fresh publicity about their trips. They got to listen to all the reports of a Trump-appointed federal judge in Texas blocking the sale of a drug that terminates pregnancy in the first 10 weeks.Next, I guess, Thomas will be suggesting that the only acceptable form of birth control is the rhythm method. Much about him, from his judicial goals to his behavior, is a scandal. Let’s not forget that he’s the one who was confirmed despite the compelling testimony of Anita Hill about his wretched comments.Any chance of getting him tossed off the court, huh? Huh?Bret: Sorry, but the only scandal I see here is that the luxury trips don’t square with Justice Thomas’s self-portrait as a guy who likes to drive his R.V. around the country, spending nights in Walmart parking lots. Until last month, there was no rule requiring justices to disclose this kind of information about vacations with wealthy friends, assuming those friends didn’t have business before the court. Which makes the idea of trying to toss him off the court a nonstarter, not to mention a bad precedent lest some liberal justices turn out to have rich and generous friends, too.Of course, I say all this as someone who’s generally a fan of Justice Thomas, even if I’m not as conservative as he is. If people want to criticize him, it should be for his votes, not his vacations.Gail: I admit my call for a Thomas-toss was probably rhetorical. But intensely felt. I’ve been bitter ever since Mitch McConnell sat on that Supreme Court opening to keep Barack Obama from having a chance to fill it.Bret: Totally agree. I’d sooner toss out McConnell than Thomas.Gail: And while we can’t punish Thomas for his spouse’s misbehavior, Ginni Thomas’s very, very public attempts to get the last presidential election overturned are themselves quite a scandal.Bret: Agree again. But dubious taste in spouses is not an impeachable offense.Gail: So let’s go to Thomas’s opinions, especially that one on abortion.When the court overturned Roe v. Wade, Thomas urged his colleagues to go further and take on issues like the right to contraception. Presuming you weren’t on board with that one?Tasos Katopodis and Michael M. Santiago for Getty ImagesBret: As the father of three kids as opposed to, say, a dozen: no. And definitely not on board with the ruling in Texas on the abortion pill.Gail: So what is it about Thomas you find so … terrif?Bret: Ideology aside, I read his memoir, “My Grandfather’s Son.” I’d recommend it to anyone who hates him, particularly the chapters about his dirt-poor childhood in the Jim Crow South. Few public officials in America today have pulled themselves up as far as he has or against greater odds. Also, I agree with a lot of his jurisprudence, particularly when it comes to issues like eminent domain and affirmative action.But of course I part company on abortion and contraception — no small questions, especially now.Gail: I’ll say.Bret: Speaking of which, you must have been pleased to see a liberal judge in Wisconsin win her election to the state Supreme Court in a landslide, largely on the strength of her pro-choice views. As I predicted last year — and I was not alone — the Dobbs decision is going to hang around Republican necks like a millstone.Gail: Didn’t Trump blame the anti-abortion crowd for all those Republican defeats last fall? He might have been right — although his lousy choice in candidates certainly didn’t help.Bret: Sometimes even Trump has a point. And his opposition to abortion always struck me as being about as sincere as most of his other moral convictions.Gail: Back during his first presidential foray, when he was still speaking to the Times Opinion folk, I remember him telling us how amazed he was to discover you could get a conservative audience wildly excited just by saying something bad about abortion. That is exactly how Trump became anti-choice.Speaking of Trump stuff, I had the strangest experience when he went to court last week. Former president facing 34 felony counts. Nothing like that in all American history.And I found myself feeling … bored. What’s wrong with me?Bret: Nothing is wrong with you. It’s a normal reaction because none of it is news: We’ve known about the hush-money payments to Stormy Daniels for years, and we’ve been discussing this indictment for weeks.On the other hand, it reminds me of what Orson Welles supposedly said about flying — something to the effect that the only two emotions one can possibly have on an airplane are boredom and terror. Watching Trump’s speech in Mar-a-Lago later that night was the terror part for me, because he is very likely to ride this misbegotten indictment all the way to the Republican nomination, not to mention an eventual acquittal on appeal — if it even gets to an appeal.Gail: Listening to the post-indictment speech, I was sorta surprised it was pretty much just … his speech. No sense that this crisis was going to turn anything around. That goes to your point that all this is just another piece of equipment for his re-election tour.Bret: I hate to say this, but in Trump’s lizardly way his speech was masterful. His pitch has always been that he’s fighting a corrupt system — even if what he’s really doing is corrupting the system. And in the progressive district attorney, Alvin Bragg, he’s got a perfect foil. It’s why I hate the fact that this particular case is the one they’re throwing against him. The case in Georgia is so much stronger.Gail: Hey, New York gets the proverbial ball rolling. But trying to overturn the results of a presidential election — really overturn them — is a tad more serious. Once we move on to Georgia, we really move on.Bret: Assuming Trump isn’t president again by the time we get there.I also hate the fact that this case allows him to suck up all of the available political oxygen. All of us in the news media are like moths to the flame, or lambs to the slaughter, or lemmings to the cliff, or, well, pick your cliché.Gail: Hamsters to the wheel? I’d like something more … nonviolent.Speaking of elections, what did you think about the mayoral contest in Chicago? Deep liberal versus conservative Democrat, right? And guess who won.Bret: Seemed to me like a choice between a sane moderate, Paul Vallas, versus a not-so-sane progressive, Brandon Johnson. I wish Johnson well, because I love Chicago and always root for the White Sox except when they play the Yankees. But I’m fearful for its future as a city where people will want to work, invest and build. The No. 1 issue in the city is public safety, and I don’t think that Johnson’s the guy to restore it, even if he no longer supports defunding the police the way he once did.Gail: Pretty hard to combat crime in a city like Chicago unless the law-abiding folks in high-crime neighborhoods have confidence in you.Bret: Sure. Also hard to get cops to do their jobs when they feel their mayor doesn’t have their backs.Gail: Of course, the best thing anybody could do to curb crime in Chicago would be to get guns off the street. The city has very tough gun control laws, but they don’t mean a heck of a lot as long as there’s a massive flow of illegal weapons coming in from outside.Bret: Sorta demonstrating the futility of Chicago gun control …Gail: Bret, we’ve been talking about abortion rights becoming such a powerhouse election issue. Any chance we’ll ever see the same thing happen with guns?Bret: Well, you saw what happened with the state legislators in Tennessee, two of whom got expelled after they held a protest in the legislative chamber. A lot of political theater. Not a lot of legislative accomplishment.Gail: Sigh.Bret: Gail, this week’s conversation has been too depressing. So, if you haven’t already, be sure to read our colleague Esau McCaulley’s beautiful, profound meditation on the meaning of Easter. It’s not my holiday, religiously speaking, but I couldn’t help but be moved by two paragraphs in particular.First, Esau asks: “Isn’t it easier to believe that everyone who loves us has some secret agenda? That racism will forever block the creation of what Martin Luther King Jr. called the beloved community? That the gun lobby will always overwhelm every attempt at reform? That poverty is a fact of human existence? Despair allows us to give up our resistance and rest awhile.”And then: “That indestructibility of hope might be the central and most radical claim of Easter — that three days after Jesus was killed, he returned to his disciples physically and that made all the difference. Easter, then, is not a metaphor for new beginnings; it is about encountering the person who, despite every disappointment we experience with ourselves and with the world, gives us a reason to carry on.”The Times is committed to publishing a diversity of letters to the editor. We’d like to hear what you think about this or any of our articles. Here are some tips. And here’s our email: letters@nytimes.com.Follow The New York Times Opinion section on Facebook, Twitter (@NYTopinion) and Instagram. More

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      in US Politics

      Iowa suspends provision of emergency contraception to sexual assault victims

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      The Iowa attorney general’s office has paused its practice of paying for emergency contraception – and in rare cases, abortions – for victims of sexual assault, a move that has drawn criticism from some victim advocates.Federal regulations and state law require Iowa to pay many of the expenses for sexual assault victims who seek medical help, such as the costs of forensic exams and treatment for sexually transmitted infections. Under the previous attorney general, Democrat Tom Miller, Iowa’s victim compensation fund also paid for Plan B, the so-called morning-after pill, as well as other treatments to prevent pregnancy.A spokesperson for the Republican attorney general, Brenna Bird, who defeated Miller’s bid for an 11th term in November, told the Des Moines Register that those payments were now on hold as part of a review of victim services.“As a part of her top-down, bottom-up audit of victim assistance, attorney general Bird is carefully evaluating whether this is an appropriate use of public funds,” the spokesperson, Alyssa Brouillet, said in a statement. “Until that review is complete, payment of these pending claims will be delayed.”Victim advocates were caught off guard by the pause. The chief executive officer of Planned Parenthood North Central States, Ruth Richardson, said in a statement that the move was “deplorable and reprehensible”.Bird’s decision comes as access to the most commonly used method of abortion in the US plunged into uncertainty after conflicting court rulings on Friday over the legality of the abortion medication mifepristone. For now, the drug the Food and Drug Administration approved in 2000 appeared to remain at least immediately available in the wake of separate rulings issued in quick succession.Federal judge Matthew Kacsmaryk in Texas, a Donald Trump White House appointee, ordered a hold on federal approval of mifepristone. But that decision came at nearly the same time that federal judge Thomas Rice in Washington state, a Barack Obama White House appointee essentially ordered the opposite.The extraordinary timing of the competing orders revealed the high stakes surrounding the drug nearly a year after the US supreme court overturned the federal abortion rights established by Roe v Wade. Joe Biden said his White House administration would fight the Texas ruling.In Iowa, money for the victim compensation fund comes from fines and penalties paid by convicted criminals. For sexual assault victims, state law requires that the fund pay “the cost of a medical examination of a victim for the purpose of gathering evidence and the cost of treatment of a victim for the purpose of preventing venereal disease”. But it makes no mention of contraception or pregnancy risk.Sandi Tibbetts Murphy, who served as director of the victim assistance division under Miller, said the longtime policy for Iowa has been to include the cost of emergency contraception in the expenses covered by the fund. She said that in rare cases, the fund paid for abortions for rape victims.“My concern is for the victims of sexual assault, who, with no real notice, are now finding themselves either unable to access needed treatment and services, or are now being forced to pay out of their own pocket for those services, when this was done at no fault of their own,” she said. More