The Supreme Court’s 2022 decision in Dobbs overturning Roe v. Wade found the constitution no longer protects a right to abortion. The ramifications of Dobbs have been far reaching, opening the door to state regulation and resulting in major litigation regarding access to abortion such as in Alliance for Hippocratic Medicine v. FDA. So too, Dobbs has freshly impacted employers and the health benefits they offer resulting in questions about access, parity, and ERISA preemption. On April 4, 2023, the bioInnovation Speaker Series, Health Law and Policy Programs featured Marc Hearron, Senior Counsel for the Center for Reproductive Rights and Yesenia Perez, Senior VP, Employee Benefits Compliance for the USI NE Region as guest speakers to discuss. This event was hosted by the Health Law & Policy Society and the if/when/how: Lawyering for Reproductive Justice at the UNH Franklin Pierce School of Law.
Subsequent to this Speaker Series, on Friday, April 7, 2023, U.S. District Judge Matthew Kacsmaryk of the Northern District of Texas entered a preliminary injunction (link) “staying” the Food and Drug Administration’s approval of the drug mifepristone—an approval that occurred back in 2000. This injunction represents a rare if not unprecedented reversal of FDA action approving, or refusing to approve, a drug. Meanwhile, in a separate litigation in the Eastern District of Washington, U.S. District Judge Thomas O. Rice entered a preliminary injunction (link) enjoining any actions on the part of FDA that would make mifepristone unavailable. Thus, as of now, FDA is subject to two contradictory orders: an order from Judge Kacsmaryk in effect vacating FDA’s approval of mifepristone, and an order from Judge Rice maintaining the status quo as regards mifepristone’s approval.
What happens now? Orders granting preliminary injunctions are immediately appealable under 28 U.S.C. § 1292(a)(1). Shortly after Judge Kacsmaryk entered his order, FDA appealed to the U.S. Court of Appeals for the Fifth Circuit. Subsequently, FDA filed an emergency motion for a stay pending appeal. Specifically, FDA has asked the Fifth Circuit to stay the district court’s decision pending appeal or, at a minimum, enter a stay that would allow FDA to seek relief in the U.S. Supreme Court. The most direct effect of Dobbs and these follow-on cases, our panelists note, is that access to reproductive healthcare services has been complicated and jeopardized, and the chaotic legal environment is causing confusion and uncertainty for policy makers and businesses throughout the country and the world.
The recording can be accessed here: https://media.unh.edu/media/t/1_pnc48kia
