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The FDA and Thiopental

Federal District Judge Richard Leon ruled in favor of the murderers today in their challenge to the FDA allowing importation of thiopental for lethal injection.  Michael Kiefer has this story for the Arizona Republic.  The story quotes the opinion:

In the final analysis, the FDA appears to be simply wrapping itself in the flag of law enforcement discretion to justify its authority and masquerade an otherwise seemingly callous indifference to the health consequences of those imminently facing the executioner's needle. How utterly disappointing!
Use of an exclamation point in a judicial opinion, by itself, should raise a presumption of reversibility.  On top of that, the opinion is callously indifferent to the delay and denial of justice caused by the lethal injection litigation.

An accompanying order directs the FDA to inform states that use of the imported drug is illegal.  The absence of any discussion or legal authority in the opinion about use and the fact that the agencies impacted by this order are not parties and have not been heard don't seem to bother Judge Leon.

Hopefully this order will be swiftly stayed.


In order to get a stay, you have to ask for one. Whether the current administration will is, in my opinion, up for grabs. Adverse headlines are seldom created by simply doing nothing.

States, not being parties, should simply ignore the order.

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