While media headlines across the country declare a Texas judge has the power to ban the abortion pills nationwide, three leading legal experts say he in fact *does not* have that power. CarrieNBaker reports:
appointed by Donald Trump. For five years before becoming a federal judge, Kacsmaryk was deputy general counsel for First Liberty Institute, a Christian conservative legal organization that specializes in representing religious groups claiming they have experienced discrimination.
All that the plaintiffs are asking for is that the judge declare the approval of mifepristone was unlawful. They’re not asking for him to ban it, and he can’t ban it. There’s no mechanism for him to ban a medication. They can’t ask him to take it off the market. That’s not in his authority. He can’t go into any warehouse and confiscate anything. The FDA can, but that’s up to the FDA, just like it’s up to a police officer to enforce laws against going 55 when I’m driving 60.
Or the FDA could say publicly that this is an unlawful drug, and now we are going to consider Danco and GenBioPro to be distributing unlawful drugs and we’re going to come after them with the fullest extent of the law. I sure hope that the Biden FDA would not do that. But they could. My understanding is that most states allow doctors to prescribe unapproved drugs as a matter of course. The FDA’s authority is to go after the distributor, not doctors. Unapproved drugs are a part of American medicine. It does raise risks for malpractice lawsuits if you are prescribing unapproved drugs. I’m not saying this is something that is without any legal risk, but it’s not against FDA law for doctors to prescribe unapproved drugs. It would be up to their state law.
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