The Weekly Sift

Someday soon, a perfectly safe abortion drug could become unavailable nationwide, even in states that defend reproductive rights. That sounds so crazy that most of us have a hard time taking it seriously. (Wasn’t the whole point of reversing Roe to turn the abortion question over to the states?) You hear the claim and then think, “That can’t really be happening.” But it is.

Here’s how it works.

Trump left us a kangaroo federal court. The Amarillo division of the Northern District of Texas has only two federal judges, and one of them, Matthew J. Kacsmaryk, hears 95% of the civil lawsuits. Kacsmaryk is the very model of a Trump judge. He was a lawyer for the right-wing First Liberty Institute until Trump tapped him for a federal judgeship in 2017. Since then, he’s become famous for out-of-the-mainstream legal opinions that are reliably right-wing, but not terribly well reasoned or well rooted in the law.

While on the bench, Kacsmaryk has made a string of controversial rulings: He declared Biden administration protections for transgender workers unlawful; twice ordered the administration to enforce the Trump-era “Remain in Mexico” policy; and attacked Title X, the only federal program designed to provide birth control to low-income and uninsured people.

The beauty of this arrangement, if you’re an right-wing culture warrior, is that Amarillo has become the perfect place to file a controversial suit, particularly if it’s based on ideology rather than law. You’re practically guaranteed to get Kacsmaryk, which means you’re practically guaranteed to win, at least until there’s an appeal. [It’s worth pointing out that political activists on all sides try to venue-shop like this. But nowhere in America is as well-greased for liberals as Amarillo is for conservatives.] And even if you ultimately lose, you still might win for a considerable chunk of time, because Kacsmaryk might issue an injunction that favors you until the Supreme Court gets around to reversing his opinion, which could take months or even years.

That’s what happened when he forced the Biden administration to continue Trump’s remain-in-Mexico immigration plan. The Supreme Court ultimately reversed Kacsmaryk’s decision 6-3. (Yes, that’s how far-right his reasoning was: Not even John Roberts and Brett Kavanaugh were convinced.) Nonetheless, an injunction kept remain-in-Mexico in place for more than a year while the case was under consideration.

That shouldn’t have happened, but both courts above Kacsmaryk, the 5th Circuit Court of Appeals and the Supreme Court, are dominated by conservative judicial activists. They aren’t so unprincipled that they could endorse Kacsmaryk’s ridiculous reasoning, but they have more wiggle room when deciding whether or not to lift a temporary injunction. Both courts used that discretion to screw the Biden administration. (Trump’s requests to set aside injunctions got much more favorable consideration.)

So what is the current case?

Mifepristone. More than half of all abortions in the US are now through medication rather than surgery. That’s bad news from the anti-abortion perspective, because there’s no abortion clinic to picket or shoot up, and it’s easier to smuggle pills into a handmaid’s-tale state than to run an underground surgery clinic in one. So now that Roe v Wade has been reversed and states are outlawing abortion, the pills are the next big target. Friday, Wyoming became the first state to outlaw them.

If you live in a blue state like California or Vermont, you may roll your eyes: Wyoming is like that. But your state guarantees abortion rights, so the effort to limit access couldn’t possibly affect you or the women you care about, right?

Not so fast.

A typical medication abortion combines two drugs: mifepristone and misoprostol. So a coalition of anti-abortion groups and individuals have filed suit to make mifepristone illegal nationwide, claiming that the FDA made a mistake when it declared the drug safe in 2000.

The suit would be laughed out of any legitimate court, for reasons that former Anton Scalia law clerk Adam Unikowsky explains in detail in his blog Adam’s Legal Newsletter:

• The plaintiffs’ theory of standing is irreconcilable with Supreme Court precedent.
• The statute of limitations has expired on plaintiffs’ challenge to the FDA’s approval of mifepristone. The plaintiffs claim that the FDA “constructively reopened” that approval in 2016, thus restarting the statute of limitations, but that’s clearly wrong.
• The plaintiffs did not exhaust their claims, even though a regulation explicitly required them to do so.
• Although the plaintiffs claim that the FDA’s actions are contrary to the Food, Drug, and Cosmetic Act (FDCA), the plaintiffs have failed to identify any particular provision of the FDCA that the FDA has actually violated.

Problems like that would be fatal to an ordinary lawsuit. But wait, there’s Amarillo, where ordinary legal reasoning doesn’t apply. “What’s Amarillo got to do with anything?” you might ask. The FDA isn’t located in Amarillo and mifepristone isn’t manufactured there. Amarillo appears to have no connection at all to mifepristone. But the venue is appropriate, according to the lawsuit, because one of the suing organizations is located there.

This district and this division are where Plaintiffs Alliance for Hippocratic Medicine, including the doctors of its member associations, and Dr. Shaun Jester are situated and are injured by Defendants’ actions.

AHA appears to be “a front group for the Catholic Medical Association, the Coptic Medical Association of North America, the American College of Pediatricians, the Christian Medical & Dental Associations, and the American Association of Pro-Life Obstetricians and Gynecologists.” It was founded last August, after Roe was reversed in June, apparently for the specific purpose of filing this lawsuit in Amarillo.

And what “injury” are the local doctors alleging? Unikowsky summarizes:

The plaintiff-doctors’ theory of standing is, in a nutshell, that if mifepristone stays on the market, other doctors will prescribe mifepristone to their pregnant patients, the pregnant patients will suffer side effects, and then the patients will switch doctors and come to the plaintiff-doctors. This, in turn, will injure the plaintiff-doctors because it will divert their attention from their other patients, potentially force them to complete “unfinished abortions,” and possibly expose them to malpractice lawsuits. By contrast, if mifepristone is off the market, these women will elect to carry their babies to term (as opposed to seeking surgical abortions), thus preventing the plaintiff-doctors from facing these risks.

If that “injury” sounds a little too roundabout to be credible, that’s because it is. Unikowsky cites Supreme Court rulings that have already rejected similar standing claims.

As for safety, the FDA’s original studies are now backed up by more than two decades of experience, both here and abroad. CNN summarizes:

Data from hundreds of studies and 23 years of approved use has shown that mifepristone is highly safe and effective, according to 12 of the country’s most respected medical associations, including the American College of Obstetricians and Gynecologists and the American Medical Association, which signed an amicus brief in the Texas case.

This medicine combination for abortion is also available in more than 60 other countries.

Since its approval in the US in 2000, there have been 5 deaths associated with mifepristone for every 1 million people who used it, according to the US Food and Drug Administration. That means the death rate is 0.0005%.

Mifepristone’s safety is on par with those of common over-the-counter pain relievers like ibuprofen and acetaminophen, studies show.

Data analyzed by CNN shows that mifepristone is even safer than some of the most common prescription medications. The risk of death from penicillin, an antibiotic used to treat bacterial infections like pneumonia, for example, is four times greater than it is for mifepristone. The risk of death after taking Viagra – used to treat erectile dysfunction – is nearly 10 times higher.

If there actually were a safety issue, you might expect some women’s-health organizations to sign onto the lawsuit, but none have. The suing organizations all have prior religious or political orientations. For some it is right in their name, like the American Association of Pro-Life Obstetricians and Gynecologists and the Christian Medical and Dental Associations. The one whose name sounds like it might be objective, the American College of Pediatricians, isn’t:

The group’s primary focus is advocating against abortion and the adoption of children by gay or lesbian people. It also advocates conversion therapy. … ACPeds has been listed as a hate group by the Southern Poverty Law Center for pushing “anti-LGBTQ junk science”.

Hearings. Kacsmaryk held hearings this week, and seemed open to the plaintiffs’ arguments. Of course, no one can say for certain what he will do until he does it, and perhaps the intense attention his kangaroo court has gotten lately — some protesters have come dressed as kangaroos — will intimidate him into backing off. Ordinarily, I advise readers not to get riled up about events that haven’t happened yet and may not happen. But if Kacsmaryk does what he is expected to do, and issues a nationwide injunction making mifepristone illegal, the effects will be sweeping and instantaneous.

Ordinarily, when an injunction disrupts an otherwise uneventful status quo, you can expect a higher court to set it aside pending review. But they don’t have to. Higher courts don’t even need to endorse whatever justifications Kacsmaryk offers for his injunction; all they have to do to promote right-wing policies they favor is drag their feet. That would get mifepristone off the market for a year or maybe longer, for no legal reason whatsoever.

If they do, women could still use misoprostol alone to induce an abortion. That is slightly less effective than a smaller dose combined with mifepristone, and causes more discomfort and side effects. (Remember: The most likely way for women to get caught when they induce a medication abortion in a state that bans them is to have side effects that take them to the emergency room.) Worse, misoprostol would then become a single target: Finding a way to ban it could end about half the abortions in the US.

Of course, there’s no legal reason to ban misoprostol, so it ought to be safe. But maybe not in Amarillo, where the law doesn’t matter any more.