A right-wing judge takes aim at medication abortions

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.

An anti-Kacsmaryk protester dressed in judicial robes and a kangaroo mask.

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.

Post a comment or leave a trackback: Trackback URL.


  • Jacquie Mardell  On March 20, 2023 at 12:13 pm

    I also haven’t seen addressed the fact that mifepristone, under the trade name Corlux®, is approved (different blood concentration than that which effects progesterone) for the treatment of Cushing’s disease. I worked for the company that got that approval. It also has some demonstrated efficacy in treating psychotic features associated with major depression, although we were never able to work through the study design issues to demonstrate this to the satisfaction of FDA. Are physicians still allowed to prescribe this medicine for its other labeled indications? What happens to those patients if they can’t get this medicine?

    • Dale Moses  On March 20, 2023 at 3:20 pm

      They will no longer be able to get their medication. But the right does not care bout knock-on effects. So…Yea the ruling will almost certainly kill more people than it “saves”.

  • Ann  On March 20, 2023 at 3:03 pm

    I don’t understand how the US got to the point where an apparently unqualified and irrational judge in a small town can wield so much power. We are being governed by the minority. That’s not how it is supposed to work in this country!

  • Douglas D Lonngren  On March 20, 2023 at 6:27 pm

    I’ve heard medical experts say that a medication abortion is indistinguishable from a miscarriage. Women who need medical care in non-abortion states can just say it is a miscarriage.

  • George Washington, Jr.  On March 20, 2023 at 6:46 pm

    The FDA is an executive branch agency. Judge Kacsmaryk cannot unilaterally declare mifepristone illegal. He can only rule that the FDA erred in approving it 23 years ago. Since the FDA is an executive branch agency, all Biden has to do is issue an executive order instructing the FDA to reexamine their prior approval, and in the meantime, grant mifepristone interim approval.

    The drug will still be available. The problem will be from doctors who are afraid to prescribe it, or pharmacies like Walgreens that have already stopped carrying it, even in blue states. The other option is a physician in the Netherlands who will write a prescription that can be filled by a mail-order pharmacy in India.

    One wonders how far this can go. Can a liberal judge in California rule that the Founding Fathers only intended the Second Amendment to apply to firearms available in the 18th century? Or the First Amendment only applies to the specific churches that were in existence at that time?

    Ultimately, the court’s authority is based on voluntary compliance. Biden could paraphrase Andrew Jackson’s response to Worcester v. Georgia: “Judge Marshall has his decision; now let him enforce it.”

  • JTF  On March 20, 2023 at 11:22 pm

    They will never stop ALL abortions. I know a woman who never got an abortion, but when she ws young and unmarried was so terrified her religious parents would find out she got pregnant that she did the only thing she could think of that wasn’t an abortion (which she had been taught was wrong). She got a bottle of something and drank until it was gone and spent several days dealing with the after effects of alcohol poisoning. She also had a miscarriage. She could have died or had a child with FAS, but to this conservative she was able to exist in a world where she simply had a miscarriage.

    I wonder how many women out there have similar experiences while denouncing abortion with a straight face (as she does.)

  • Tom  On April 18, 2023 at 5:01 pm

    FDA approves all drugs like TTB all alcohol for sale but repeal of prohibition left states with rights unless in conflict with commerce clause.

    Will be interesting to see how it plays out as common sense says one state may prohibit sale and use within the state but not buying from another state or going to another state.

    Again sad our legislators can’t find a compromise. Always two extremes.


  • By Beginnings | The Weekly Sift on March 20, 2023 at 12:19 pm

    […] week’s featured posts are “A right-wing judge takes aim at medication abortions” and “Can the anti-woke mob define […]

  • […] “A right-wing judge takes aim at medication abortions” […]

  • By Representatives or Rulers? | The Weekly Sift on April 10, 2023 at 12:13 pm

    […] I predicted three weeks ago, the lone federal judge hearing cases in Amarillo did the job Trump appointed him to do: He issued […]

  • By People are People | The Weekly Sift on April 24, 2023 at 12:31 pm

    […] organizations filed a federal lawsuit in Amarillo, where they were guaranteed a hearing before Kacsmaryk, who is a well-know culture warrior likely to agree with them. The suit asked the court to reverse […]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: