A pair of federal court conflicts on Friday created arguably the most contentious and murky legal flashpoint over access to abortion since the Supreme Court’s ruling last summer overturned Roe v. Wade ended the right to an abortion.
In less than an hour, the two major decisions came down separately, in closely watched abortion drug cases, at odds with each other.
In one case, brought by anti-abortion activists in Texas, a judge said the FDA’s 2000 approval of mifepristone — one of the drugs used to terminate pregnancies — should be halted. But the ruling court adjourned for a week so that an appeal could be made, and the appeal has now been granted.
In the second case, where the Democratic-led state of Washington had asked to provide access to popular abortions, a judge ordered the federal government to keep the drug available in 17 states, plus the District of Columbia, which brought the lawsuit.
On their face, both cases deal with administrative law that governs how the US Food and Drug Administration goes about regulating mifepristones. The controversy is not directly driven by the question of whether abortion is a right – a question that was at the center of a Supreme Court ruling last June. But tucked away in the Texas ruling, US District Judge Matthew Kacsmaryk, was the idea that embryos can have individual rights that courts can consider in their ordinances.
In each case, they emerge from the political environment, which in Roe v. Supreme Court. Wade’s reversal and immediate impact on the legislative package created by the Supreme Court’s ruling. The abortion issue is now back on track with the Supreme Court, as higher courts are being asked to reverse Friday night’s rulings.
Because a Texas judge has refrained from ruling, it has no immediate impact on the availability of abortion drugs. But the next several days stand for the most serious and combustible legal battle of the order – the battle with the ruling rival of Washington in the council.
Over the course of one week of his reign, Kacsmaryk – a former deputy of President Donald Trump, who is based in Amarillo, Texas – seemed to hold nothing back, tearing up the FDA’s approval of mifepristone and embracing the provocative arguments that the drug’s dangers were not adequately considered.
Kacsmaryk, whose anti-abortion advocacy before joining the federal bench was documented by a recent Washington Post profile, has shown marked hostility to drug abortion, which is the method used in the majority of abortions in the United States.
Leading medical institutions have already condemned his decision and rejected the judge’s analysis of the safety of abortion drugs.
The judge said the FDA did not take into account the “immense psychological trauma and post-traumatic stress women often experience from chemical abortions,” in the repeated invocation of “chemical abortion” preferred by abortion opponents. Kacsmaryk suggested that the FDA’s data underestimate the frequency with which the drug is mistakenly administered to someone who had an ectopic pregnancy, that is, a pregnancy outside the uterine cavity. He repeated the challengers’ accusations that the FDA’s approval process had been subject to improper political pressure.
He said the FDA’s refusal to impose certain restrictions on the drug’s use has “resulted in many deaths and many serious or life-threatening adverse reactions.”
“Whatever the numbers are, it will likely be considerably lower since the FDA has not gained pressure to increase access to chemical abortion at the expense of women’s safety,” he said.
Jack Resneck Jr., president of the American Medical Association, said in a statement that Kacsmaryk’s ruling “flies in the face of science and evidence, and threatens access to safe and effective medicine.”
“The court’s disregard for well-established scientific facts in favor of speculative allegations and ideological assertions will harm our patients and undermine the health of the nation,” said the AMA president.
Kacsmaryk’s decision did not ignore the argument made by FDA defenders that blocking access to abortion drugs would put pregnant women at risk and force abortion seekers to end their pregnancies through a surgical procedure.
But the judge wrote in favor of the challengers to ensure that “women and girls are protected from unnecessary harm and do not disrespect federal law.”
When he explained why the preliminary injunction — which was issued before the case went to trial — was justified, he said that embryos have their own rights that could be part of the analysis. That assertion goes further than what the Supreme Court said in ruling in June, as Dobbs v. Promoted Women’s Health.
“In parentheses,” he said, “individual justice” and “irreparable injustice” analysis must also be argued for real people extinguished by mifepristone – especially in the post-Dobbs era, Kacsmaryk said Friday.
When Kacsmaryk was challenged by activists in Texas to block abortion pills, U.S. District Judge Thomas Owen Rice, who sits in Spokane, Washington, pondered whether abortion pills should be made easier to obtain.
Rice, an Obama appointee, has given Democratic attorneys general who have brought partial profit lawsuits.
Rice had requested that certain restrictions be removed – known as REMS, or Risk Evaluation and Mitigation Strategy, the FDA imposed on mifepristone, with blue states arguing that the drug was safe and effective enough to warrant those restrictions.
While Rice rejected the current order, he demanded that states also order the FDA to keep the drugs on the market. But Rice’s ruling applies only to 17 plaintiff states and the District of Columbia.
The decision maintains the status quo for having abortion pills readily available in those areas and specifically prevents the agency from “changing the status quo and rights as it relates to the availability of Mifepristone under the current operational January 2023 Risk Assessment and Mitigation Strategy.”
Rice’s resignation was a big break in Kacmsaryk’s cover. While the Texas judge said the FDA did not adequately account for the drug’s risks, Rice expressed sympathy for arguments that the rules for the use of mifepristone were too strict and that the agency should be more lenient with how abortion pills are regulated. .
Finally, he refused to grant the Democratic states’ request to remove some of the drug restrictions at issue in this lawsuit, because that would go well beyond maintaining the status quo while the case progresses. He noted that if he granted that request, he would also have to pay off a new FDA rule that allows pharmacies to dispense abortion pills. That would reduce their availability and directly meet the “applicants”.
If Kacsmaryk agrees that the mifepristone-impairment order is allowed to go into effect, it will precipitously impel Rice to ensure that mifepristone remains available in more states. The reigning Kacsmaryk is a national ban.
The Department of Justice and Danco, the manufacturer of mifepristone, which intervened in the case to defend the evidence, have both filed notices of appeal. Both Attorney General Merrick Garland and Danco said in statements that they would seek “stays” in addition to ruling appeals, emergency requests meaning that the decision is frozen while the appeal progresses.
They appeal to the 5th Circuit Court of Appeals, which is sometimes said to be the most conservative appeals court in the country. However, some legal scholars doubted that the 5th Circuit, as conservative as it is, would enforce Kacmsaryk’s order.
Washington, where the blue-state lawsuit was filed, is covered by the 9th Circuit, a liberal appeals court. But it is uncertain whether the ruling will be called by Rice. Garland said the Justice Department is still reviewing Washington’s decision. That said, the division of space was increasing the odds that the Supreme Court would intervene. But given how the impact of the two district courts’ practical prescriptions contradict each other, the Supreme Court may have no choice but to get involved.
A lawyer for the challengers in the Texas case, anti-abortion drug organizations and doctors, said Friday evening that he had not reviewed the Washington decision, so he could not weigh how it would affect Kacsmaryk’s order to stop drug testing.
“I’m not sure if there’s a direct conflict with the state of Washington, because I haven’t read it yet, but it can’t be a direct conflict,” said Erik Baptista, who is an attorney with the Alliance to Defend Freedom. “But if there is a direct conflict then – it will inevitably go to the Supreme Court, but I am convinced that it is necessary to make that conclusion at this point.”