Health and Human Services Secretary Xavier Becerra on Sunday said “everything is on the table” following a Texas federal judge’s ruling to suspend the Food and Drug Administration’s approval of the medication abortion drug mifepristone.
In an interview with CNN’s Dana Bash on “State of the Union,” the secretary would not say whether he believes the FDA should ignore the ruling and keep the drug on the market, but he maintained that the Biden administration is considering all options.
“We want the courts to overturn this reckless decision,” Becerra said, adding that there was a “good chance” of Supreme Court intervention but declining to say how, exactly, the administration will handle the ruling in the interim.
“Everything is on the table. The president said that way back when the Dobbs decision came out. Every option is on the table,” the secretary told Bash, referring to last year’s Supreme Court ruling that overturned Roe v. Wade.
But an HHS spokesperson later Sunday tried to walk back Becerra’s response to suggestions that the FDA should ignore the ruling.
“People are rightly frustrated about this decision — but as dangerous a precedent it sets for a court to disregard FDA’s expert judgment regarding a drug’s safety and efficacy, it would also set a dangerous precedent for the Administration to disregard a binding decision,” HHS spokesperson Kamara Jones tweeted.
New York Rep. Alexandria Ocasio-Cortez is one of the Democrats pushing that approach. In a separate appearance on “State of the Union,” she did not back away from her call Friday on CNN for the ruling to be ignored, saying that if it was ultimately upheld by the Supreme Court, “it would essentially institute a national abortion ban.”
“I do not believe that the courts have the authority over the FDA that they just asserted, and I do believe that it creates a crisis,” she told Bash.
Ocasio-Cortez called the ruling “an extreme abuse of power” and said there was precedent for the executive branch ignoring court rulings.
“I do think that when it comes to gaming out what the very real possibilities are in the coming days, weeks and months, this is not just about speculation, but this is about preparation. And the reality of our courts right now is very disturbing,” she said.
Meanwhile, Republican Rep. Tony Gonzales of Texas warned in a separate interview with Bash on Sunday that House GOP appropriators could defund certain FDA programs if the ruling is ultimately ignored.
“The House Republicans have the power of the purse, and if the administration wants to not lead this ruling, not live up to this ruling, then we’re going to have a problem,” the second-term lawmaker said. “And it may come a point where House Republicans on the appropriation side have to defund FDA programs that don’t make sense.”
‘This is not America’
US District Judge Matthew Kacsmaryk on Friday issued a ruling to halt the decades-old approval of mifepristone, but he paused the ruling from taking effect for a week so it could be appealed, a process that is underway.
“This is not America,” Becerra said Sunday. “What you saw is that one judge in that one court in that one state, that’s not America. America goes by the evidence. America does what’s fair. America does what is transparent, and we can show that what we do is for the right reasons. That’s not America.”
Within an hour of the ruling Friday, a different federal judge ruled in favor of 17 Democratic-led states and Washington, DC, looking to expand access to the abortion pill, allowing them to keep the drug available.
Becerra on Sunday touted the proven safety of the drug, a factor that Kacsmaryk questioned in his ruling. He confirmed that the Department of Justice had already filed its appeal and is waiting for its day in court.
Still, Becerra had little to say about what tangible preparations the administration would take to secure access to abortion should the drug no longer be available after the weeklong pause.
“Well, [women] certainly have access today, and we intend to do everything to make sure it’s available for them not just in a week but moving forward, period,” Becerra told Bash when asked if women would have access to the medication after this week.
The Justice Department and Danco, a mifepristone manufacturer that intervened in the case to defend the approval, have both filed notices of appeal. Attorney General Merrick Garland and Danco said in statements that in addition to the appeals, they will seek “stays” of the ruling, meaning emergency requests that the decision remains frozen while the appeal moves forward.
They’re appealing to the 5th US Circuit Court of Appeals, which is sometimes said to be the country’s most conservative appellate court. Yet some legal scholars are skeptical that the 5th Circuit, as conservative as it is, would let Kacmsaryk’s order take effect.
“I got to believe that, Dana, an appeals court, the Supreme Court, whatever court has to understand that this ruling by this one judge overturns not just access to mifepristone, but possibly any number of drugs,” Becerra said.
This story has been updated with additional developments.
CNN’s Jack Forrest, Andrew Millman, Aileen Graef, and Tierney Sneed contributed to this report.