As the White House appeals a Texas court ruling halting the approval of mifepristone, it is preparing to re-up conversations with abortion pill producers and American pharmacy chains on how to fight back against attempts to prohibit the drug, according to two sources with knowledge of the situation.
In order to prevent the sale of the pill in the United States, U.S. District Judge Matthew Kacsmaryk in Amarillo, Texas, on Friday, Apr. 7, halted the approval of mifepristone while a legal challenge is ongoing.
A conflicting Washington state ruling on Friday blocks changes to pill sales in 17 states.
The Food and Drug Administration changed its regulations in January to allow retail pharmacies to sell abortion pills for the first time in the nation, but more than a dozen states have approved legislation restricting such sales, Reuters reported.
There are no retail pharmacies that are currently certified to dispense mifepristone and many are going through the certification process.
"We are discussing ways to offer them legal support," one of the sources said of manufacturers and retail pharmacies.
Options being discussed include having the U.S. Department of Justice back any legal challenges brought against manufacturers and pharmacies, and providing legal advice on how they can continue dispensing the pills, the sources said.
The DOJ is separately seeking an emergency stay of the Texas order.
According to a senior administration official, the DOJ's lawsuit strategy is not controlled by the White House.
The representative added that the Justice Department does not offer legal counsel to private organizations.
There is a separate volunteer process that gets private attorneys and law firms to do legal work on different issues that the agency oversees.
It was not immediately clear which companies will be involved in these discussions. The White House declined to comment.
GenBioPro Inc. and Danco Laboratories are two significant producers of abortion pills in the United States.
Walgreens Boots Alliance Inc (WBA.O), CVS Health Corp (CVS.N), and Rite Aid Corp (RAD.N). are among the pharmacy chains that sell these medications.
In March, Walgreens declared that it will not sell abortion drugs in the 20 states where it might be in violation of the law.
Walgreens declined to comment on Sunday, Apr. 9. A request for comments on any conversations with the White House received no response from the other corporations.
The administration official said the White House has "absolutely previously connected with both pharmacies and manufacturers but we have not had any discussions on this since Friday when the decision came out."
Any potential future conversations will not include decisions that impact "how the FDA will operate or is operating," the official said.
The White House's Gender Policy Council, Inter-Governmental Affairs, and the vice president's office have been holding strategy calls for nearly two months on how to make medical abortion available after the Texas judge ruled, anticipating Friday's outcome.
According to sources, the Biden administration has been in talks with pharmacies and pill manufacturers about the matter for months, but Friday's move gives the situation new urgency.
A flurry of White House strategy calls on Friday and Saturday also focused on "immediate, short-term" relief offered by the conflicting order from Washington state, three sources said.
Following Texas judge Kacsmaryk's directive, Obama appointed U.S. District Judge Thomas Rice in Spokane, Washington ordered the FDA not to make any changes to mifepristone access in some Democrat-led states.
According to the administration, the Washington ruling provides it additional time to legally respond to Texas's final decision.
It could "expedite review of Texas, encourage an immediate stay on it and puts a huge question mark over it," one of the sources said.
Politically, the sources said, it makes it easier for the White House to make its case to the public that the FDA approval of the drug was accurate, mobilize activists and supporters to turn the issue into one that resonates with voters ahead of the 2024 presidential elections.
"There's a lot of legal analysis that needs to get done...about how these two orders interact," the senior administration official said.
President Joe Biden and Vice President Kamala Harris said on Friday the administration will fight the Texas ruling.
Before it is concluded, the legal dispute will probably pass through several levels of appeals courts over the course of several months or years.
The government is asking the 5th U.S. Circuit Court of Appeals in New Orleans for an immediate stay of Kacsmaryk's ruling.
The sources claimed that the White House strategy discussions covered the next steps, including how the DOJ will wait for a ruling from the 5th Circuit, which is known for its conservatism.
If it does not stay the ruling, the department will seek an expedited review by the Supreme Court, they said.
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