DOJ to appeal abortion pill case to Supreme Court

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HHS Secretary says ignoring federal judge’s abortion pill ruling is ‘on the table’

The HHS secretary also scorched the Texas judge's ruling on the abortion pill as un-American.

President Biden is appealing a federal appeals court decision that places a partial restriction on the availability of abortion pills to the U.S. Supreme Court. 

On Wednesday, the 5th U.S. Circuit Court of Appeals in New Orleans ruled 2-1 to keep the abortion drug mifepristone available only to be dispensed up to seven weeks, not 10, and not by mail. The decision partially overturned a ruling by a Texas judge that put a nationwide halt on the Food and Drug Administration's more than 20-year-old approval of the abortion pill. 

Biden's Justice Department is seeking a stay on the entire injunction issued by the Texas judge. 

"The Justice Department strongly disagrees with the Fifth Circuit’s decision in Alliance for Hippocratic Medicine v. FDA to deny in part our request for a stay pending appeal," Attorney General Merrick Garland said in a statement. "We will be seeking emergency relief from the Supreme Court to defend the FDA’s scientific judgment and protect Americans’ access to safe and effective reproductive care."

APPEALS COURT PARTIALLY OVERTURNS LOWER RULING, PRESERVES ACCESS TO MIFEPRISTONE ABORTION PILL

Attorney General Merrick Garland on Thursday said the Justice Department will ask the U.S. Supreme Court to stay a decision by the 5th Circuit Court of Appeals that partially restricts access to FDA-approved abortion pills. (Olivier Douliery/AFP via Getty Images)

The case, Alliance Hippocratic Medicine v. FDA, concerns pro-life doctors and medical groups that sued the FDA, alleging that the agency unlawfully approved mifepristone in 2000 and that the drug is unsafe. 

Mifepristone, known by the brand name Mifeprex, is a pill taken with misoprostol in a two-drug regimen that first deprives an unborn baby of hormones it needs to stay alive and then causes cramps and contractions to expel the dead fetus from the mother's womb.

PRO-LIFE REPUBLICANS SAY FDA APPROVAL OF ABORTION PILL WAS ILLEGAL, ASK APPEALS COURT TO UPHOLD INJUNCTION

Mifepristone is an FDA-approved abortion medication that, when taken with misoprostol, will terminate a pregnancy. (Reuters)

In an unprecedented and highly controversial ruling, U.S. District Judge for the Northern District of Texas Matthew J. Kacsmaryk halted the FDA's approval of mifepristone on Friday, giving the federal government one week to seek emergency relief from the Fifth Circuit. Justice Department lawyers appealed the decision, leading to the ruling that his now headed to the Supreme Court.

"Plaintiffs lack standing to challenge FDA’s approval of a drug they neither take nor prescribe; their challenge to FDA actions dating back to 2000 is manifestly untimely; and they have provided no basis for second-guessing FDA’s scientific judgment," the attorneys wrote. "If allowed to take effect, that order will irreparably harm patients, health care systems, and businesses."

SCHUMER SAYS JUDGE'S MIFEPRISTONE ABORTION PILL RULING ‘COULD THROW OUR COUNTRY INTO CHAOS’

Abortion rights advocates gather in front of the J Marvin Jones Federal Building and Courthouse in Amarillo, Texas, on March 15, 2023. (Moises Avila/AFP via Getty Images)

The three-judge panel of the 5th Circuit agreed that the lower court decision revoking FDA approval of mifepristone should be reversed. But the judges were split over changes made by the FDA that relaxed the rules for prescribing and dispensing mifepristone.

These changes include extending the period of pregnancy when the drug can be used and also allowing it to be dispensed by mail, without any need to visit a doctor’s office. These rules were changed in the years since the FDA’s initial approval of mifepristone in 2000.

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Under the new appeals court order, the initial approval remains in effect, but the relaxed rules do not.

The Justice Department would have the Supreme Court reinstate the relaxed rules. 

Fox News' Lawrence Richard and the Associated Press contributed to this report.