Even if the Texas judge rules to remove the abortion drug’s FDA approval … the FDA is still in charge.
If that happens, contrary to precedent and an almost century-long understanding of the law, any ruling he issues about mail would bind the FDA and Danco only. To everyone else, he is just one judge in one trial court. No one beyond the parties has to follow what he says about this archaic statute. Now, if and when Judge Kacsmaryk’s ruling gets appealed, appeals courts’ decisions on the law will have greater import.
There’s a huge amount of authority that the FDA will retain, and we should look to the agency to respond to the judge’s ruling in a way that does not interrupt mifepristone distribution.And we should also be careful and measured when we talk about this case. It is true that the case is outlandish, and worthy of our attention. But we canwhile simultaneously explaining that strong legal arguments grounded in court procedure and FDA law limit the court’s authority.
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