Justice Department seeks freeze on order impacting abortion pill availabilty

Apr 10, 2023, 12:36 PM | Updated: 12:43 pm

The Justice Department asked a federal appeals court on Monday to put on hold a judge's ruling that...

FILE PHOTO: A patient prepares to take mifepristone, the first pill given in a medical abortion, at Women's Reproductive Clinic of New Mexico in Santa Teresa, U.S., January 13, 2023. (REUTERS/Evelyn Hockstein/File Photo via CNN)

(REUTERS/Evelyn Hockstein/File Photo via CNN)

Originally Published: 10 APR 23 14:07 ET
Updated: 10 APR 23 14:14 ET

(CNN) — The Justice Department asked a federal appeals court on Monday to put on hold a judge’s ruling that could make a medication abortion drug unavailable nationwide starting Friday at midnight.

The request, filed on Monday before the US 5th Circuit Court of Appeals, is seeking a short-term administrative stay as well as a long-term stay pending appeal on a lower court ruling from US District Judge Matthew Kacsmaryk, who ordered the Food and Drug Administration’s approval of the drug to be suspended.

An administrative stay would give the appellate court more breathing room to consider whether Kacsmaryk’s ruling should be frozen while the litigation plays out. The Justice Department and Danco, a manufacturer of the drug mifepristone that intervened in the case to defend the FDA’s approval in 2000, had both already filed notices of appeal.

Kacsmaryk said his Friday night order would not go into effect for seven days to give the Justice Department time to appeal. If the Justice Department doesn’t win a stay from the 5th Circuit, it is expected to appeal to the Supreme Court.

Kacsmaryk’s order in a case brought in Texas by anti-abortion rights activists is seemingly at odds with another federal court ruling handed down less than an hour later in a separate case on the other side of the country.

That second order said that the FDA must maintain the drug’s availability in 17 Democratic-led states and the District of Columbia, which sued to make abortion pills easier to obtain. In that case, US District Judge Thomas O. Rice said the FDA could not do anything that would reduce the availability of the drug in the 18 jurisdictions that brought the lawsuit.

The Justice Department has not said yet whether it will appeal Rice’s order. On Monday, the Justice Department asked Rice to clarify how FDA should comply with his order if Kacsmaryk’s ruling is allowed to go into effect, with a filing that pointed to a “significant tension” between the two rulings.

Mifepristone is the first pill in the two-pill process to terminate a pregnancy. Medication abortion makes up the majority of abortions in the United States.

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Justice Department seeks freeze on order impacting abortion pill availabilty