The Biden administration has already filed an appeal to the Texas ruling, which came out the same day that a federal judge in Washington state ruled that the FDA had placed overly burdensome regulations on the abortion pill. The existence of contradictory rulings has led to questions about what, if anything, can be enforced in the near-term — a situation that is likely to wind up at the Supreme Court.
Becerra warned that this case not only affected the most common method of abortion in the country but could also affect other drugs that the FDA has approved or might still approve.
“First and foremost, when you turn upside down the entire FDA approval process, you’re not talking about just mifepristone,” he said. “You’re talking about every kind of drug. You’re talking about our vaccines, you’re talking about insulin, you’re talking about the new Alzheimer’s drugs that may come on.”
He added that judges should consider the facts instead of their personal beliefs.
“If a judge decides to substitute his preference, his personal opinion for that of scientists and medical professionals, what drug isn’t subject to some kind of legal challenge?” Becerra said. “So we have to go to court — and for America’s sake, and for women’s sake, we have to prevail on this.”
When asked by CNN’s Dana Bash whether the Biden administration was taking off the table the possibility of recommending that the FDA ignore a ban on a medication that can be used for abortion, Becerra referred to the Supreme Court ruling that overturned a constitutional right to the procedure and said: “Everything is on the table. The president said that way back when the Dobbs decision came out. Every option is on the table.”
Regarding the conservative-leaning Supreme Court, Becerra said that he “[doesn’t] care who the nine justices are on the Supreme Court or any court of appeal,” and that “they should be able to discern the difference between inserting their personal judgment and using the facts and evidence to make a legal ruling.”
Rep. Alexandria Ocasio-Cortez (D-N.Y.) said on CNN that there were grounds for ignoring an abortion pill ban.
“The reality of our courts right now is very disturbing,” she said. “This ruling is an extreme abuse of power. It is an extraordinary example of judicial overreach.”
Ocasio-Cortez maintained that there was precedent for not following a court ruling called “agency nonacquiescence,” which the Maine Law Review defines as “the refusal by administrative agencies to follow the decisions of lower federal courts.”
“I think one of the things that we need to examine is the grounds of that ruling,” she said on Sunday. “But I do not believe that the courts have the authority over the FDA that they just asserted, and I do believe that it creates a crisis.”
Though she said the Biden administration needed to follow the law, Sen. Catherine Cortez Masto (D-Nev.) said she saw the ruling by Kacsmaryk, an appointee of President Donald Trump, as part of a coordinated effort to deprive American women of their rights.
“This is a concerted effort that we see playing across the country. And we have to be vigilant,” Masto told MSNBC’s Jenn Psaki.
Predicting that contraception would be the next target, she added: “This is a concerted effort they have had to really erode and take back women’s rights in this country. And this is about our freedom.”
Rep. Tony Gonzales (R-Texas) said on CNN’s “State of the Union” that if the administration declined to enforce a court ruling, that could be very troublesome.
“It’s very dangerous when you have the administration, the Biden administration, coming out and saying they may not uphold a ruling,” he said.