Case 2:22-cv-00223-Z Document 137 Filed 04/07/23 Page 62 of 67 PageID 4484
response to FDA’s actions on chemical abortion drugs cannot be recovered.” Id.; see also Whitman-Walker Clinic, Inc. v. U.S. Dep’t of Health & Hum. Servs., 485 F. Supp. 3d 1, 56 (D.D.C. 2020) (obstacles that make it more difficult for an organization to accomplish its mission provide injury for both standing and irreparable harm).
Defendants’ respond that the drugs at issue have been on the market for more than twenty years. ECF No. 28 at 41. This argument ignores that many restrictions and safeguards — which no longer exist — were in place for most of that time. Defendants also argue “Plaintiffs’ extreme delay” in filing suit shows they face no irreparable harm. Id. at 42. But the time between the allegedly unlawful actions and the filing of a suit “is not determinative” of whether relief should be granted. Boire v. Pilot Freight Carriers, Inc., 515 F.2d 1185, 1193 (5th Cir. 1975). Here, eleven months does not constitute an “extreme” delay. See, e.g., Optimus Steel, LLC v. U.S. Army Corps of Eng’rs, 492 F. Supp. 3d 701, 720 (E.D. Tex. 2020) (eleven-month delay did not militate against equitable relief because “the Court can presume that Plaintiff needed ample time to evaluate its claims”).[1] “[T]emporary injunctive relief may still be of great value to protect against ongoing harms, even if the initial harm is in the distant past.” N.L.R.B. v. Hartman & Tyner, Inc., 714 F.3d 1244, 1252 (11th Cir. 2013).
The Court also disagrees that Plaintiffs’ theories of injury “are too speculative to even show standing.” ECF No. 28 at 42. Plaintiffs have credibly alleged past and future harm resulting from the removal of restrictions for chemical abortion drugs. “Although a court’s analysis of likelihood of success in the context of an injunctive relief request is governed by the deferential APA’s arbitrary and capricious standard, a court does not always owe deference to federal agencies’ positions concerning irreparable harm, balance of hardships, or public interest.” San Luis & Delta-
- ↑ To clarify, the eleven months referenced here is the approximate time between FDA’s “final agency action” in the December 2021 Denial of the 2019 Petition and the commencement of this case.
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