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 Rebouche 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.
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Today’s episode was produced by Lana Ulrich, Bill Pollock, and Sam Desai. It was engineered by Dave Stotz and John Popp. Research was provided by Sophia Gardell, Sam Desai, and Lana Ulrich.
Participants
Thomas Jipping is a senior legal fellow for the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation. He joined Heritage in May 2018 after 15 years on the staff of U.S. Senator Orrin Hatch (R-Utah), including several as his chief counsel on the Senate Judiciary Committee. He co-authored a report, "The Justice Department Is Wrong: Federal Law Does Prohibit Mailing Abortion Drugs," for Heritage.
Rachel Rebouche is dean of the Temple University Beasley School of Law. She is a leading scholar in reproductive health law and family law, an author of Governance Feminism: An Introduction, and an editor of Governance Feminism: Notes from the Field. She has written articles about mifepristone regulation in Slate, Columbia Law Review, and Stanford Law Review.
Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.
Additional 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 ippHipHippocratic Medicine v. FDA (N.D. TX., Apr. 7, 2023)
- Order, Alliance for Hippocratic Medicine v. FDA (5th Cir., Apr. 13, 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)
TRANSCRIPT
This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.
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