Case 2:22-cv-00223-Z Document 137 Filed 04/07/23 Page 65 of 67 PageID 4487
dispute developed.” Texas v. Biden, No. 2:21-CV-067-Z, 2022 WL 17718634, at *9 (N.D. Tex. Dec. 15, 2022) (internal marks omitted); see also Texas v. United States, 40 F.4th 205, 220 (5th Cir. 2022) (the relevant status quo is the one “absent the unlawful agency action”); Wages & White Lion, 16 F.4th at 1144 (“In other words, ‘the relief sought here would simply suspend administrative alteration of the status quo.’”) (quoting Nken, 556 U.S. at 430 n.1); Callaway, 489 F.2d at 576 (“If the currently existing status quo itself is causing one of the parties irreparable injury, it is necessary to alter the situation so as to prevent the injury.”). “[P]arties could otherwise have no real opportunity to seek judicial review except at their peril.” Mila Sohoni, The Power to Vacate a Rule, 88 Geo. Wash. L. Rev. 1121, 1157–58 (2020). Chemical abortion is only the status quo insofar as Defendants’ unlawful actions and their delay in responding to Plaintiffs’ petitions have made it so. The fact that injunctive relief could upset this “status quo” is therefore an insufficient basis to deny injunctive relief.
- G. A Stay Under Section 705 of the APA Is More Appropriate Than Ordering Withdrawal or Suspension of FDA’s Approval
The Motion asks for injunctive relief but goes as far as requesting the Court to order Defendants to “withdraw or suspend the approvals of chemical abortion drugs, and remove them from the list of approved drugs.” ECF No. 7 at 7. Singular equitable relief is “commonplace” in APA cases and is often “necessary to provide the plaintiffs” with “complete redress.” E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 681 (9th Cir. 2021) (internal marks omitted). Although the Court finds Plaintiffs have a substantial likelihood of prevailing on the merits, the Court instead exercises its authority under the APA to order less drastic relief. Section 705 of the APA provides:
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