The White House is planning to re-up discussions with abortion pill manufacturers and U.S. pharmacy chains on ways to push back against efforts to ban mifepristone, two sources with knowledge of the matter said, as it appeals a Texas court ruling suspending the approval of the drug.
U.S. District Judge Matthew Kacsmaryk in Amarillo, Texas, on Friday suspended approval of mifepristone, which will essentially make sales of the pill illegal in the U.S., while a legal challenge proceeds. A conflicting Washington state ruling on Friday blocks changes to pill sales in 17 states.
In January, the Food and Drug Administration made a regulatory change that made it possible for retail pharmacies to offer abortion pills in the country for the first time, but more than a dozen states have passed laws limiting such sales.
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.
The White House does not direct the DOJ’s litigation strategy, a senior administration official said. The official also said the Justice Department does not provide legal advice to private entities. 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 comment.
Major U.S. manufacturers of abortion pills include GenBioPro Inc and Danco Laboratories. Pharmacy chains dispensing such pills include Walgreens Boots Alliance Inc (WBA.O) , CVS Health Corp (CVS.N) and Rite Aid Corp (RAD.N).
Walgreens said in March it would not dispense abortion pills in the 20 states where it risked breaking the law.
On Sunday, Walgreens declined comment. The other companies did not respond to a request for comment on any discussions with the White House.
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.
Discussions between the Biden administration and pill manufacturers and pharmacies over the issue have been ongoing for months, sources said, but Friday’s decision brings fresh 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.
Minutes after Texas judge Kacsmaryk’s order, U.S. District Judge Thomas Rice in Spokane, Washington, an Obama appointee, ordered the FDA not to make any changes to mifepristone access in some Democrat-led states.
The administration believes that the Washington ruling gives it more time to respond legally 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.
“We’re going to fight it. The Attorney General has announced @TheJusticeDept will file an appeal and seek an immediate stay of the decision,” Biden tweeted.
The legal battle is likely to work through multiple levels of appeals courts over a period of months or years before it is resolved.
The administration is seeking an emergency stay of Kacsmaryk’s order from the New Orleans-based 5th U.S. Circuit Court of Appeals.
The path forward discussed during the White House strategy calls touched on how the DOJ will wait for a decision from the 5th Circuit, which has a conservative reputation, the sources said.
If it does not stay the ruling, the department will seek an expedited review by the Supreme Court, they said.