The suspense is over for an anti-abortion medication, although, as the saying goes, it ain’t over ’til it’s over. The drug’s ultimate fate remains an unknown.
On Friday evening, the U.S. Supreme Court ruled that mifepristone, the long-approved abortion drug, will remain widely available for now. The order halts a sweeping ruling by a federal judge in Texas that would have removed access to the drug.
The justices kicked the legal battle back down to the U.S. Court of Appeals for the 5th Circuit to hear arguments and render a formal decision. But no matter how that court rules, one of the parties will appeal, which will return the case to the high court, where oral arguments will likely be presented in the fall and a decision perhaps not rendered until the following June.
A decision could have major consequences in a number of ways, from how it affects those seeking an abortion to hindering the Food and Drug Administration’s regulatory authority.
Whatever the final decision, the case is yet another chapter in the hypocrisy of anti-abortion advocates in the specific, and of conservatives in general.
The Drug
Mifepristone is part of a two-drug regimen that accounts for more than half of U.S. abortions today. The Food and Drug Administration approved the drug over 20 years ago. It only recently became a flashpoint in the abortion debate. More precisely, the drug became the next battleground for anti-abortion crusaders last year after the Supreme Court overturned the 1973 Roe v. Wade ruling that had made abortion legal nationwide.
The drug is legal throughout the United States, including states that ban abortion, because it is also used to treat miscarriage.
Timeline Of The Case
Anti-abortion rights groups sued the FDA for its approval of the drug, in Alliance for Hippocratic Medicine v. FDA.
They chose the safe legal harbor of U.S. District Judge Matthew Kacsmaryk, a nominee of former President Donald Trump.
It is no accident the litigants sought Kacsmaryk’s court in the northern Texas district. It’s a dirty little secret called judge shopping. Lawyers can manipulate the legal system by filing their cases with a judge they think will be receptive. Did someone say “activist judges”? Looks like lawyers know all about them.
Before being appointed by Trump, Kacsmaryk worked for the First Liberty Institute, a conservative legal group that has been a force behind many successful religious-based challenges through federal courts, including the Supreme Court.
Kacsmaryk sided with the anti-abortionists and issued a nationwide injunction to suspend the FDA’s approval of the drug. Had it gone into effect last Friday, the drug would no longer be available, although many states were prepared to ignore the ruling and continue making it available to their residents.
The Biden administration, the Justice Department and Danco Laboratories, a manufacturer of mifepristone and a defendant in the case, appealed to the 5th Circuit, based in New Orleans. In the 5th Circuit, a three-judge panel — two Trump nominees and a George W. Bush nominee — overturned part of Kacsmaryk’s ruling but held for other parts. That sent an appeal to the U.S. Supreme Court, raising fears that the high court, with its six conservative justices, would uphold Kacsmaryk’s ruling.
Initially, on April 14, the high court issued an administrative stay in the case, a temporary pause, until a midnight Wednesday decision, which the court then extended to this Friday when it sent the case back to the 5th Circuit. The ruling by the 5th Circuit, one expected to favor the plaintiffs, won’t end the saga. An expected appeal will send the case back to the Supreme Court for its full review of the case and what will be a final ruling on the fate of the drug.
The abridged version of all these legal gymnastics: An abortion drug was banned, then unbanned, then restricted, then unbanned and then it stayed unbanned when a lot of people thought it might get banned only to get banned again in the 5th Circuit but unbanned on appeal until it faces the possibility of being banned again.
Maybe the Supreme Court should just declare the entire FDA unconstitutional and call it a day.
For the time being, the drug will remain available as it always has since its FDA approval back in 2000.
The case, the court’s most crucial since overturning Roe, comes with an especially frightening consequence: If the justices hold for Kacsmaryk, the entire regulatory structure of the FDA and its job to ensure safe medications would be thrown into chaos.
There is a legal reason to believe the justices will reverse Kaczmaryk’s original decision.
As much as Samuel Alito, Amy Coney Barrett and Clarence Thomas would support it (because “abortion BAD, ooog!”), John Roberts, Neil Gorsuch and Brett Kavanaugh might join the court’s three liberal justices because of the “standing” question.
You can’t just sue over any law just because you want to. It requires standing, which means you have suffered actual harm from a law or could reasonably be harmed by it.
A signature feature of the Roberts Court has been to create doctrines to limit who has standing to sue and restrict access to the courts. (Conservatives have been on that crusade for more than 50 years now.)
The standing theory in this case is, at best, questionable. The anti-abortion physicians who brought this case have no legal standing to challenge the FDA approval because they have no concrete stake in the drug. They don’t take it or prescribe it, and they never found a woman who claimed to have been injured by it.
Granting a favorable ruling to the plaintiffs is a door Roberts doesn’t want to open.
The Plaintiff’s Case
The plaintiff’s case is head-scratching.
A key argument is that the FDA rushed the drug’s approval and didn’t properly test it to ensure it was safe. But the approval process actually took longer than usual, four years, and the FDA’s process had the full support of advisory committees and major professional associations.
Further, the drug, invented by a French pharmaceutical company, had already been approved throughout much of Europe and China by the late 1980s with no evidence of inefficacy. So, long before approval here in the United States, we had extensive data showing the drug to be safe and effective. One study included more than 16,000 patients.
In fact, the FDA went above and beyond to ensure safety.
Approval of the drug relied partly on French data, but since the French health system differs from the U.S. health system, the FDA placed certain restrictions on the drug, later known as a risk evaluation and mitigation strategy or REMS. As more data came in, the FDA gradually loosened restrictions, including some as recently as earlier this year. Does that sound like an agency that fast-tracked a drug?
Despite all these precautions, a judge out of nowhere with no medical experience rebuked the FDA, its extended safety protocols and the input of medical professionals, both here and abroad.
Wait, conservatives ignoring science? Color me shocked!
The plaintiffs also cited the Comstock Act, a federal law known as a “chastity” law, dating back to 1873. It prohibited using the mail to send ”lewd or lascivious” material, including contraception. The law only vaguely defines obscene materials, but it’s patently obvious that what was considered lewd or lascivious back then is entirely acceptable today.
So we’re supposed to apply the standards of 1873 to today’s standards 150 years later? Was there such a thing as mifepristone in 1873? Is this some jurist’s idea of originalism?
So let me understand this: We can’t ban an AR-15 even though it didn’t exist when the Framers wrote the Second Amendment, but we can ban mifepristone based on a law written in 1873 even though the drug didn’t exist 150 years ago. Is that about the size of it, or shall we next ban bikinis and require that a dress reveal only a woman’s ankles?
Or did this judge not know that the landmark 1965 Supreme Court decision in Griswold v. Connecticut found the Comstock Act unconstitutional to restrict access to birth control because it interfered with a person’s right to privacy? (See also 1969’s Stanley v. Georgia.)
Who in the heck is this Trump-nominated Texas judge? Oh, right, “Only the best people.”
Not quite.
Judge Kacsmaryk Under Fire
As this case was being put through the judicial meat grinder, The Washington Post reported that Kacsmaryk lied under oath before the Senate Judiciary Committee during his confirmation hearing interviews.
According to The Post, Kacsmaryk submitted a draft article to a Texas law journal in 2017 that criticized Obama administration protections for transgender people, criticized people seeking abortions and criticized “abortifacient drugs designed to kill unborn children.”
Gee, no wonder the anti-abortion plaintiffs brought their case before him.
You can agree or disagree with those views, but they come with a big illegal red flag: Kacsmaryk asked to be removed as the article’s sole author and have his name replaced by two colleagues at the First Liberty Institute, the religious legal organization where he worked.
Why such a request? Well, at the same time Kacsmaryk submitted his draft article to that Texas law journal, he was being considered for a judgeship on the U.S. District Court for the Northern District of Texas by the Senate Judiciary Committee. Nominees for federal judgeships are required to disclose every public and published remark, anything written or said in public. Kacsmaryk’s article was published all right, but under his colleagues’ names, and he never reported it to the committee.
Gee, no wonder he asked to have his name removed from the article.
But wait, there’s more. Kacsmaryk also failed to tell the committee about interviews he gave to a Christian talk radio program in which he called being gay “a lifestyle,” and warned that changes in sexual norms would lead “people who experience same-sex attraction” to clash with religious institutions. He said it all began with “no-fault divorce” and “permissive policies on contraception.”
Bottom line: We have a judge who lied to a committee so that he could become a judge and whose views were tailor-made for issuing rulings the anti-abortion side knew it could get out of him. Must be another one of those activist judges Republicans keep warning us about.
Just think about that for a moment. A nominee, a devout Christian, stands before the Senate Judiciary Committee, places his hand on a Bible, swears to tell the whole truth and nothing but the truth, and then lies through his teeth.
In a sane, reasonable and honest world, Kacsmaryk should be immediately expelled, his rulings nullified and voided, and charges of perjury filed, all without the reliance on impeachment.
But that will never happen. The idea that nominees for federal judgeships are required to disclose every public and published remark is a joke. If there are no consequences, then they aren’t required to do anything, and there won’t be anything to stop future nominees from doing whatever it takes to get on the bench.
Only the best people.
About The Comstock Act
The Comstock Act was central to two diametrically opposed crusades in the 19th century. The law was the work of Anthony Comstock, a deeply religious man who was horrified by the amount of porn and alcohol he saw among fellow soldiers while serving in the Army. He championed efforts to oppose such “obscenities” (because he knew so much better than anyone else, right?) and successfully lobbied for passage of the law named after him. It was part of the growing temperance movement that eventually led to Prohibition in 1920 (that worked out swimmingly), but, ironically, it also ignited interest in reproductive issues and women’s rights, paving the way for women’s right to vote and future Supreme Court cases that would eventually nullify the Comstock Act.
So now a bunch of meddling self-righteous conservatives want to do what, ban this pill outright? Mifepristone is now used for half the abortions in America. Half. And they want to take that away, too? I can see that poor pharmacist now. “Sorry, ma’am, but abortion pills are dangerous, and you can’t be trusted with them. How about a big fucking gun instead?”
I can’t wait for the mental gymnastics on why judges can ban abortion pills but not Viagra, antibiotics and painkillers.
The Hypocrisy Of It All
But I have a different question about all this, one that, once again, highlights the hypocritical nature of so many conservative arguments.
How is it that conservatives, who typically rail against big government meddling, have no trouble using the government to tell people how to live their lives? Gay marriage, physician-assisted suicide, abortion and, my goodness, don’t forget those drag shows!
Well, they lost the sanctity-of-marriage battle, so they’ve rekindled the sanctity-of-life issue. Can calls to defund Planned Parenthood be far behind again?
We all know raising children is expensive, so it should come as no surprise that the overwhelming majority of women getting abortions do so because they don’t have the means or resources to raise that child in a nourishing environment. Sounds pretty family value-ish, yet those insisting we force childbirth on the ill-equipped to-be mothers also support reducing the services upon which such mothers depend.
In other words, in Family Values Land, the pre-born zygote is a beautiful child, but upon birth, the little rugrat is a parasite eating up my tax dollars. So let’s cut those taxes (but only on the rich), and let’s cut those entitlement programs (but only the ones that help the poor).
Sex and sex education? Can’t have that. Republicans want to eliminate it in public schools. The alternative, abstinence-only, has proved to be a total failure. Meanwhile, states with the highest teen pregnancy rates also have the least access to comprehensive sex education, and most of those states are majority-Republican.
Consistently, 99% of women of every faith use contraception, while women of all faiths, including evangelicals, have had abortions. One survey found that as many as 70% of women who have abortions in the U.S. identified as Christians, including one-quarter of those participants.
Does this not sound a little hypocritical to you?
If pro-lifers want to prevent abortions, why aren’t they more supportive of comprehensive sex education and contraception use, the main factors driving the long-term decline in teen pregnancy?
If they are so pro-life, why aren’t they offering to adopt the child of a woman seeking an abortion? At least then we’d know just how pro-life the pro-lifers really were since the real burden of supporting a life begins not at conception but at birth.
You see where we are here? Abortion opponents are good at making convenient arguments, but when it comes to consistently living up to them, they fail miserably. Do as I say, not as I do.
Whether you are for or against abortion rights, we can all agree that we’d like to reduce the number of abortions performed in our country.
What I wonder is whether conservatives will ever see that being “pro-life” has to go hand-in-hand with having substantive help for young mothers, such as free daycare, help with housing and financial subsidies, so that the pregnancy won’t throw them and the baby into poverty.
No woman wants to be a position of needing an abortion, but some women have no choice. If it is good for each state to decide whether or not abortion should be safe and legal, isn’t it even better if each person decides this for herself or himself?
To the religious right, I say: If God is omnipotent, if he wanted to force and enforce his laws on everyone, then he could and he would. He left choice up to the individual. He must have a reason for that. If God has left choice up to us, then who can claim they know better than God and try to force his law on another? No child should be born unwanted. But no one who is not going to be involved in raising that potential child should have the right to tell someone else what to do.
People should be free to make choices concerning their lives, bodies and health, and no government or church should be making those choices for them. No more than insurance companies should make medical choices for people.
Government and churches are welcome to offer advice, education, and alternatives (to those willing to hear them), but they should not take choices away. If you believe abortion is wrong, don’t get one. If you think other people shouldn’t get abortions, set up an adoption clinic that does outreach to pregnant women considering an abortion, especially poor pregnant women, the largest group who seek abortions.
If the anti-abortion side had been as zealous in advocating adoption as it’s been all these years to ban abortions, it might’ve achieved its goals, but in a far more positive way.
Criminalizing abortion, including pharmaceutically induced abortions, will convince no one that it’s wrong. Women who want to exercise their right to choose will simply apply the 11th Commandment: “Thou shalt not get caught.”
I hope Republicans continue their assault on abortion rights. I hope they go all out with six-week bans across the board. Then I’d like to see them suffer the consequences come 2024, and not necessarily because I support a woman’s right to choose.
If the prime directive of an elected official is to stay elected, you have to wonder three things:
- Do they not see what Americans think about abortion rights? How can they not? Since the Supreme Court nullified Roe, polls have consistently shown that most Americans believe abortion should be legal in all or most cases, particularly among young voters. On access to abortion medication such as mifepristone, the debate is even more lopsided.
- If Republicans can’t see this, then they don’t deserve a seat in government because they’re not doing the people’s business. They’re unable to. Translation, dear voter: They can’t hear you.
- If they can read the tea leaves but choose not to heed them, they don’t deserve to be in elected office because they’re not only not doing the people’s business, they’re willfully ignoring the job description that comes with the duties of representative government.
So go nuts, Republicans. Run the table. But don’t come crying to me when you get your tails kicked in 2024. And please, don’t have one of those V8 moments where you tell reporters, gee, we made a mistake. Playing dumb now and naïve later isn’t a good look, even for you guys.