Page:Washington v. U.S. Food and Drug Administration (E.D. Wash. 2023).pdf/9

 A preliminary injunction can either be prohibitory or mandatory. Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 878 (9th Cir. 2009). A prohibitory injunction preserves the status quo which is the “last, uncontested status which preceded the pending controversy.” Id. at 879. A mandatory injunction “orders a responsible party to take action.” Id. at 878. Mandatory injunctions are disfavored and require a higher showing that the “facts and law clearly favor the moving party.” Garcia v. Google, 786 F.3d 733, 740 (9th Cir. 2015).

Plaintiffs contend they are seeking a prohibitory injunction to maintain the “status quo.” ECF Nos. 3, 78. Plaintiffs seek an “order enjoining Defendants from doing two things: (1) enforcing the 2023 REMS, and (2) changing the status quo to make mifepristone less available in the Plaintiff States.” ECF No. 60 at 19. However, when addressing Defendants’ argument that the 2023 REMS is less restrictive than any prior REMS, Plaintiffs contend they “seek to enjoin the application of any REMS, such that mifepristone can be prescribed just like the 20,000+ other drugs that don’t have one.” Id. at 10. At oral argument, Plaintiffs maintain they seek a prohibitory injunction.

The status quo, i.e., the last uncontested status preceding the pending controversy, were the REMS in place prior to the 2023 REMS. Considering the