Abortion Pill Rulings in Conflict: What Happens Next?

Boxes of the drug mifepristone sit on a shelf at the West Alabama Women's Center in Tuscaloosa, Ala., March 16, 2022.

There is also a twist: The Texas ruling came at virtually the same time a judge in Washington state, ruling in a different lawsuit brought by liberal states, ordered the FDA not to do anything that might affect the availability of mifepristone in the suing states. In March, Kacsmaryk held a hearing in the case that lasted more than four hours and was notable in part because Kacsmaryk sought to delay publicizing that it would happen to avoid protests. His ruling came approximately three weeks later.

Also on Monday, the Biden administration asked the court in Washington to clarify its order, which the Justice Department notes is in “significant tension” with the Texas ruling. It would seem impossible for the FDA to comply with Kacsmaryk’s nationwide order withholding approval of mifepristone, and the Washington order requiring its availability in the states that sued.

The judges also could grant a more lasting stay of Kacsmaryk’s ruling in the first instance, once both sides have made arguments in writing. The appeals court could also reject the administration’s plea.Whatever happens at the appeals court, the losing side will almost certainly will take its case to the Supreme Court. Once again, the administration could first ask for an immediate pause to give the justices more time to fully consider the issue.

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