Oregon Sen. Ron Wyden gave a blistering speech on the floor of the U.S. Senate Thursday morning, calling on the Food and Drug Administration to ignore an expected federal court ruling that could halt access to abortion pills.
A conservative group is suing in a federal district court in Texas to overrule the FDA’s approval of mifepristone, a medication used to end a pregnancy. If the President Donald Trump-appointed judge hearing the case rules for the plaintiffs, it would make the drug effectively illegal everywhere in the United States.
If the Texas judge, Matthew Kacsmaryk, makes that decision, Wyden said, “President Biden and the FDA must ignore it.”
Saying he’d never called for ignoring a court ruling before, Wyden said the harm that would be caused by this decision would be irreparable.
“The FDA should go on just as it has for the last 23 years since it first approved mifepristone,” Wyden said. “The FDA needs to keep this medication on the market without interruption regardless of what the ruling says. Doctors and pharmacies should go about their jobs like nothing has changed.”
Mifepristone has been approved by the FDA for use in terminating pregnancies since 2000. Most abortions in the U.S. are medication abortions that make use of mifepristone and another drug, misoprostol.
A federal court overturning FDA approval of a drug that’s proven safe and effective would be unusual, the federal agency has noted in its defense.
The pills are approved to terminate a pregnancy that is up to 10 weeks along. They can be taken at home and they cause similar symptoms to spontaneous miscarriage. They successfully terminate pregnancy 99.6% of the time, with a 0.4% risk of major complications, and an associated mortality rate of less than 0.001 percent, according to the Kaiser Family Foundation.
Charging Trump and other conservatives with “courtwashing,” Wyden called Kacsmaryk “a lifelong right-wing activist” and “an anti-abortion zealot who was handpicked by Donald Trump and the Federalist Society to feign impartiality on the bench and deliver favorable rulings on the cases his fellow right-wing ideologues funnel his way.”
A ruling is expected in the Texas case any day now. A decision to block access to the drug would be appealed to the Fifth Circuit, but that could take time. If the FDA chooses to restart its approval process, that could take years.
Wyden turned to history to justify his call for public officials to ignore a court decision, invoking Abraham Lincoln’s reaction to the Dred Scott decision.
That infamous 1857 Supreme Court ruling held that Black people had no constitutional rights and undid the limits on slavery in the Missouri compromise.
“Lincoln’s directive in response to the case was that it is the constitutional duty of elected officials to resist unconstitutional decisions of the courts, even the Supreme Court, if those rulings would harm the nation and its people,” Wyden said.
“As Lincoln told his fellow Americans, the Supreme Court is not the Constitution. Neither is Judge Kacsmaryk. The Constitution, and the rights it affords American women, are what we must defend.”
Related: More than 20 state attorneys general, including Oregon, support dispensing abortion pills by mail
Jim Oleske, a law professor at Lewis and Clark law school, said Wyden’s words echo an argument made by social conservatives after the Supreme Court’s 2015 decision recognizing gay marriage in Obergefell v Hodges.
Conservatives including Mike Huckabee and Roy More invoked Lincoln’s words in support of state and local officials who refused to recognize same-sex marriages after the Obergefell decision.
Oleske said it is unclear from Wyden’s remarks whether the senator is only asking people to ignore an adverse decision from Judge Kacsmaryk or whether he supports the executive branch ignoring Supreme Court decisions that limit abortion and what Wyden considers women’s fundamental rights.
“At times, he seems to be making a broader argument,” Oleske said.
Here is the full text of Wyden’s Feb. 16 floor speech.
This story may be updated.
In the coming days a lawless Trump-appointed judge is expected to ban access to abortion medication nationwide. I'm calling on the FDA to protect the safety of every woman in America by keeping the drug on the market no matter the ruling. https://t.co/yWAbAOUTFr— Ron Wyden (@RonWyden) February 16, 2023