It appears the FDA has now gotten conflicting rulings on the baby-killing drug mifepristone.
Earlier we told you about the 5th Circuit’s ruling that kept the drug available but severely restricted access to it.
Now a federal judge in Washington State is ordering the FDA to preserve full access to mifepristone in the 17 states which are party to the lawsuit:
Wow: Judge Thomas Rice issues a new order compelling the FDA to preserve access to mifepristone in 17 states and D.C.—without any of the old obstacles—"irrespective of" the 5th Circuit's decision.
We have a direct conflict. https://t.co/cXg5brmtve pic.twitter.com/LkFYUPXhaD
— Mark Joseph Stern (@mjs_DC) April 13, 2023
The 5th Circuit's decision was clearly designed to reshape Kacsmaryk's screed into a more coherent and plausible argument that might persuade Kavanaugh and Barrett to vote against emergency relief. But now the Supreme Court simply has to act—the FDA is facing competing orders!
— Mark Joseph Stern (@mjs_DC) April 13, 2023
Here’s more from TPM:
Judge Thomas Rice in the eastern district of Washington responded Thursday to government lawyers asking how they should comply with contradictory rulings on mifepristone that both came down Friday evening, one of which Rice wrote.
He told them that, regardless of the ruling out of Texas, the government must comply with his order to keep mifepristone available as usual in the 17 states plus Washington D.C. that are part of the case.
“That order is currently stayed and was not in effect at the time of this Court’s preliminary injunction,” he said of Judge Matthew Kacsmaryk’s ruling, which had stayed the Food and Drug Administration’s (FDA) approval of mifepristone. Aspects of Kacsmaryk’s ruling were stayed by the Fifth Circuit Court of Appeals Thursday morning. “Under these circumstances, because the Court has jurisdiction over the parties before it and limited its preliminary injunction only to the Plaintiff States and the District of Columbia, this Court’s preliminary injunction was effective as of April 7, 2023 and must be followed by Defendants.”
He added that “irrespective of the Northern District of Texas Court ruling or the Fifth Circuit’s anticipated ruling,” defendants are prohibited from “altering the status quo and rights as it relates to the availability of Mifepristone under the current operative January 2023 Risk Evaluation and Mitigation Strategy under 21 U.S.C. § 355-1 in Plaintiff States and the District of Columbia.”
Here’s what I don’t understand. I know they are in different judicial districts, but wouldn’t a ruling by the 5th Circuit take precedence over a lower court ruling, irrespective of the judicial district? If that’s the case then there is no conflict.
But if there is a conflict, as suggested above, then it would seem that the Supreme Court will have to make some kind of ruling to get rid of the conflict.