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WASHINGTON — U.S. Senate Democratic leaders vowed to defend reproductive rights and abortion access Saturday, less than a day after a federal judge in Texas ruled the federal government needs to pull the abortion pill off the market within a week.
Senate Majority Leader Chuck Schumer, of New York, and Washington Sen. Patty Murray, the top Democrat on the Appropriations Committee, in a call with reporters emphasized they believe the correct place to address the Texas ruling is through the judicial system and pledged to do everything they can to move legislation through Congress as well.
They also expressed concern that if one federal judge is allowed to overturn the U.S. Food and Drug Administration’s approval of this pharmaceutical, other court cases could upend the agency’s medical and scientific judgment on additional prescription drugs. The Biden administration has filed notice it will appeal the ruling by Judge Matthew Kacsmaryk, a Trump appointee, to the 5th Circuit Court of Appeals in New Orleans.
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The Texas judge’s ruling to suspend FDA approval of mifepristone throughout the country pending that appeal is in conflict with a separate ruling by a federal judge in Washington state on Friday that the FDA cannot alter mifepristone access in 17 states and Washington, D.C. The Texas appeal means there is no impact on the abortion pill’s FDA status until April 14 or until another court decision.
The political leaders emphasized the risk that other drugs could be affected in future cases by the Texas decision. “We cannot lose sight of what this does to the FDA,” Schumer said. “This right-wing MAGA judge — in his zeal to impose his own views on the American people — has suspended this long-time FDA-approved medication, over the agency and drug manufacturers’ opinion.”
“According to authorities, this is the first time a long-time approved drug by the FDA has been overturned by the court,” Schumer added.
Murray, who used to chair the Senate panel that oversees health, said that mifepristone is safe and effective, rejecting arguments from anti-abortion groups in the case that claimed it is not.
“This ruling is not about science. It is about ideology,” Murray said. “It is not about protecting women. It’s about controlling their bodies. It is cruel, and it flies completely in the face of all reason and logic.”
“And let’s not forget, this dangerous ruling threatens to absolutely upend FDA’s ability to approve all kinds of other safe medications, everything from insulin to chemotherapy drugs,” Murray added.
Outlook in Congress
Schumer, Murray and other Democrats who support abortion rights will have an especially challenging time moving any bills related to abortion through their narrow majority in the U.S. Senate or convincing Republicans to bring up legislation in the U.S. House.
Speaker Kevin McCarthy, Majority Leader Steve Scalise and the vast majority of GOP lawmakers in the U.S. House campaigned on a platform that included protecting “the lives of unborn children and their mothers,” though they provided no specifics on what that would look like in legislation.
House Republicans have not brought bills on reproductive rights, abortion, or maternal mortality to the floor since they took over the chamber in January.
Top GOP leaders in Congress hadn’t publicly reacted to or commented on the Texas judge’s ruling as of mid-day Saturday.
In the U.S. Senate, several Democrats are lukewarm about the likelihood of sending President Joe Biden reproductive rights legislation, or a bill specifically protecting access to medication abortion, which is approved for up to 10 weeks.
In interviews with States Newsroom ahead of the Texas judge’s ruling on Friday, Democratic senators were less than optimistic about clearing any reproductive rights bills.
Vermont independent Sen. Bernie Sanders, chair of the U.S. Senate Health, Education, Labor and Pensions Committee, said “I don’t have an answer to that,” when asked specifically what the Senate should do on medication abortion.
Schumer didn’t have a clear plan Saturday for how Democrats would move legislation protecting access to mifepristone or broader reproductive rights issues.
“We’re going to work in every way we can legislatively and otherwise to preserve a woman’s right to choose,” Schumer said.
Schumer brought Democrats’ centerpiece legislation on reproductive rights, the Women’s Health Protection Act, to the floor twice last year. Each time, Republicans blocked the legislation from moving past the 60-vote legislative filibuster.
Democrats also tried to pass legislation last year that would have guaranteed access to birth control, though Republicans blocked it from passing the U.S. Senate, arguing it went too far.
Attempts to secure the right to contraception stemmed from Associate Justice Clarence Thomas’ concurring opinion in the abortion case last summer. In it, Thomas wrote the justices should “reconsider all of this Court’s substantive due process precedents” that relied on similar legal reasoning that was used in Roe v. Wade.
Thomas specifically mentioned the 1965 Griswold v. Connecticut ruling, which recognized married couples’ right to use contraception.
‘Chaos’ predicted for providers if ruling stands
On Saturday’s call, Murray, asked about arguments that the Biden administration and FDA could ignore or defy the Texas ruling, emphasized it won’t go into effect for six more days and that the key next step is the appeals process. “It is critical that we win this fight in court,” she said.
She also sharply criticized Republicans for their stance on reproductive rights and abortion access.
“Everyone should realize now that Republicans across the country have one goal in mind, and that’s to take away women’s right to make their own health care decisions in any way they can,” Murray said. “This battle is going to be fought in public opinion and in our votes at the ballot box.”
Center for Reproductive Rights President and CEO Nancy Northup, who was also on the call, said health care providers are in “uncharted waters” given the conflicting rulings in Texas and Washington state.
“We, of course, are counseling our clients with regard to what these decisions could mean,” Northup said. “But beyond that, I’m going to hold on saying more. We do have six more days until this goes into effect.”
Northup said health care providers who offer abortion services “are preparing and being advised on what to do if this actually goes into effect.”
“But it will be chaos,” she said. “And it’s unacceptable because it is a safe, effective method of abortion as approved by the FDA 22 years ago.”
The at-odds rulings from two federal judges are likely to move the cases with speed to the U.S. Supreme Court.
Northup noted that could happen very quickly, saying that when the organization was litigating a case on Texas’ six-week abortion ban, “we went from a decision in the trial court to the Supreme Court in a week.”
The FDA issued a statement Saturday on the appeal by the U.S. Justice Department, saying the agency approved Mifeprex, the brand name version of mifepristone, “more than 20 years ago based on a comprehensive review of the scientific evidence available and determined that it was safe and effective for its indicated use — medical termination of an early pregnancy.”
“FDA stands behind its determination that mifepristone is safe and effective under its approved conditions of use for medical termination of early pregnancy, and believes patients should have access to FDA-approved medications that FDA has determined to be safe and effective for their intended uses.”
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