U.S. Criticizes Abortion Pill Court Case : Appeal: Justice Department says judges can’t reverse the ban because of a statute that forbids importation of unapproved drugs.

The Bush Administration argued Thursday that federal judges don’t have the power to overturn the U.S. ban on the French abortion pill RU486.

In a 13-page brief filed with the Supreme Court, the Justice Department said the Food and Drug Administration’s decision to enforce the “concededly valid statute against an unmistakably clear violation is not the proper subject of judicial review.”

The brief had been requested by Supreme Court Justice Clarence Thomas. As the justice responsible for emergency cases arising in New York, Thomas was handling the appeal of a test case involving a woman challenging the U.S. ban.

Leona Benten, a 29-year-old American who brought RU486 from England on July 1, is nearly eight weeks pregnant and can safely start taking the pills only until Saturday, her lawyers say.

Customs officials seized the pills when the woman arrived at New York’s Kennedy International Airport. They still have them. She has sued to get them back.

Benten, a single, unemployed social worker who lives in Berkeley was not optimistic that Thomas would rule in her favor but was looking forward to returning to anonymity.

“I’m not feeling very hopeful with Clarence Thomas making the decision,” she told the Oakland Tribune.

“Soon it will be over. I can have a regular abortion, which will be a relief. I’m not looking for a positive decision from him.”

Abortion rights groups had arranged Benten’s trip and alerted Customs to her arrival to challenge the U.S. ban. They charge it stems from the Bush Administration’s anti-abortion stance.

But the Justice Department said the government was merely enforcing “the unambiguous command of the Food, Drug and Cosmetic Act, which forbids importation of unapproved drugs such as RU486.” The act requires that companies seeking approval for a drug must submit data proving safety and effectiveness. That has not been done in the United States.

A U.S. district judge, a Democrat appointed by former President Jimmy Carter, ruled in Benten’s favor based on the FDA’s policy of allowing certain unlicensed drugs into the country. The U.S. 2nd Circuit Court of Appeals stayed his order. Two of the three circuit judges were appointed by Presidents Ronald Reagan and Bush, Republicans who oppose abortion. Benten took the case to Thomas.

The Justice Department acknowledged to Thomas that FDA, primarily to conserve manpower, had exercised its discretion to allow some unlicensed drugs brought in “by individuals for personal use.”

The government said these fell into two categories; “innocuous drugs acquired abroad for treatment of non-serious conditions” and “drugs of unproven efficacy for serious conditions for which no effective treatment exists.”

In the first category, the government listed headache remedies, anti-itch and anti-wrinkle creams. In the second category, it listed drugs used to treat AIDS and certain cancers.

The government said Benten had a legal alternative, surgical abortion, and she “does not allege that a surgical abortion would be ineffective or unusually unsafe in her case.”

RU486, developed by the French pharmaceutical company Roussel Uclaf, causes the uterus to shed its lining and expel the developing embryo. It has been used by about 110,000 women in Britain and France.

After learning she was pregnant, Benten decided to have an abortion. She had had one at age 20 but said this decision was harder.

“It was much easier then because I was clearly not ready to have a child,” she told the Tribune. “Now it’s complicated because I’m older.

“I thought about having a child, and it just didn’t make sense. It just wouldn’t work. The father is of a different culture. It was not possible to raise the child together and it wouldn’t be responsible to raise the child on my on, in my culture.”