The FDA has clear authority to take no action against providers who do not comply with the order.
attempting to cut off access to mifepristone, the first drug in a medication abortion. Even the 5th Circuit could not defend Kacsmaryk’s attempt to revoke the FDA’s approval of the drug, which it granted in 2000. But the appeals court agreed with him on nearly everything else, imperiling access to abortion in blue states.
But they got lucky: The randomly assigned 5th Circuit panel included Andrew Oldham and Kurt Engelhardt, two of the most extreme Donald Trump appointees in the entire federal judiciary. The ruling was obviously written by Oldham, as it bears all the judge’s rhetorical trademarks. These plaintiffs really could not have hoped for a more favorable judge to adjudicate their case.
statute of limitations for challenging such an agency action bars an attack on the original approval of mifepristone in 2000. So instead, the appeals court suspends every FDA approval related to the drug since 2016.
If that’s true, then it lays the groundwork for a federal ban on abortion. All means of abortion invariably go through interstate commerce. Pills must be shipped to providers, even if they are not ultimately mailed to patients. The medical instruments used in procedural abortions must travel across state lines to reach their destination. In a modern economy, it is just inevitable thatdesigned for abortion will go through interstate commerce.
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