Last Friday, judges in Texas and Washington state handed down conflicting decisions on the legality of abortion medication pills. In Texas, a district judge invalidated the FDA’s decades-old approval of the widely used drug mifepristone. Late this Wednesday, the Court of Appeals for the Fifth Circuit partially overruled that decision by allowing mifepristone to remain available, but temporarily prevented it from being sent to by mail and limited its approved use to the first seven weeks of pregnancy. Meanwhile, in Washington state, a district judge ordered the FDA to not rollback mifepristone’s approval while litigation over the drug is ongoing. Together, the two cases create a legal debacle for the FDA, which the Justice Department has asked the Washington court to provide guidance on. Eventually, the cases may go to the U.S. Supreme Court. Thomas Jipping of The Heritage Foundation and Rachel Rebouché of the Temple University Beasley School of Law join to discuss whether mailing mifepristone violates the Comstock Act; if the FDA’s approval of the drug violated the Administrative Procedure Act; and if the district courts had jurisdiction to rule on these cases in the first place. Host Jeffrey Rosen moderates. 

 Resources  

• Order Granting in Part Plaintiff’s Motion for Preliminary Injunction, Washington v. FDA (E.D. Wa., Apr. 7, 2023) 
• Memorandum Opinion and Order, Alliance for Hippocratic Medicine v. FDA (N.D. TX., Apr. 7, 2023)
• Order, Alliance for Hippocratic Medicine v. FDA (5th Cir., Apr. 13, 2023)
• Thomas Jipping, “The Justice Department Is Wrong: Federal Law Does Prohibit Mailing Abortion Drugs,” Heritage Foundation Report (Feb. 2023)
• Rachel Rebouche (with David Cohen and Greer Donley), “The Plaintiffs Trying to Ban the Abortion Pill Admitted They Have No Case,” Slate (March 2023) 

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