Case: 23-10362 Document: 543-1 Page: 93 Date Filed: 08/16/2023
*** By the applicant’s own admission, the FDA used an unlawful procedure when it approved mifepristone. And the agency’s later regulations are likewise invalid—both under the APA as the majority outlines, and under the Comstock Act as well. In sum, the regulations are “not in accordance with law” and therefore must be set aside. 5 U.S.C. § 706(2)(A).
Accordingly, we should affirm. I concur in part and dissent in part.
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