Case 2:22-cv-00223-Z Document 137 Filed 04/07/23 Page 30 of 67 PageID 4452
the post-Dobbs era. See Dobbs, 142 S. Ct. at 2261 (“Nothing in the Constitution or in our Nation’s legal traditions authorizes the Court to adopt [the] theory of life” that States are required “to regard a fetus as lacking even the most basic human right — to live — at least until an arbitrary point in a pregnancy has passed.”) (internal marks omitted); Brief of Amici Curiae Scholars of Jurisprudence John M. Finnis and Robert P. George in Support of Petitioners, Dobbs, 142 S. Ct. 2228 (2022) (arguing unborn humans are constitutional “persons” entitled to equal protection).
- c. Administrative Procedures are Inadequate
Third, FDA’s combined response time of over sixteen years to Plaintiffs’ two petitions shows their procedures have been inadequate. See Coit, 489 U.S. at 587; Bowen v. City of New York, 476 U.S. 467, 476 (1986) (“[T]he harm imposed by exhaustion would be irreparable.”). FDA slow-walked — or rather, snail-walked — its response to the 2002 Petition by waiting nearly fourteen years to deny the petition. ECF No. 7 at 9. Requiring Plaintiffs to exhaust their administrative remedies may equate to another decade-plus of waiting for the agency to give them the time of day.
- d. Exhaustion would be Futile
Alternatively, any attempt by Plaintiffs to challenge Defendants’ actions would likely be futile. Even if Plaintiffs did not endure sixteen years of delay, dawdle, and dithering, their efforts would surely “be futile because the administrative agency will clearly reject the claim.” Gulf Restoration Network, 683 F.3d at 176. “President Biden has emphasized the need to protect access to mifepristone” since the day of the Supreme Court’s decision in Dobbs.[1] President Biden stated that “protecting reproductive rights is essential to our Nation’s health, safety, and
- ↑ See FACT SHEET: President Biden to Sign Memorandum on Ensuring Safe Access to Medication Abortion, The White House (Jan. 22, 2023), https://www.whitehouse.gov/briefing-room/statements-releases/2023/01/22/fact-sheet-president-biden-to-sign-presidential-memorandum-on-ensuring-safe-access-to-medication-abortion/.
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