#Judge Kacsmaryk
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Mike Luckovich
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A big week! :: April 17, 2023
ROBERT B. HUBBELL
APR 17, 2023
The week beginning Monday, April 17, 2023, will be filled with important stories competing for our attention. Tonight, I will attempt to frame those stories in a way to bring some order out of seeming chaos. Which, by the way, is the point of MAGA extremists who are pushing culture war issues across multiple fronts in a deliberate effort to exhaust us. Don’t let them.
Their façade is cracking, and MAGA extremists are turning on one another over strategy, tactics, money, and power. It is an inevitable turn of events for the reactionary wing of American politics. When nothing matters except power, it is every person for themselves in MAGA-land. Sadly, innocent Americans are collateral damage in MAGA’s race to the bottom. Signs abound that most Americans are tiring of the MAGA cult of death and spectacle of hate—as should be expected in a rational world where most people want only to raise their families in peace, security, and freedom. Let’s take a look.
Mass shooting in Alabama.
Like a weekly ritual, we begin the new week with news of another mass shooting. Details are scarce—possibly deliberately so—as local officials appear to treat the most recent mass shooting as a public relations problem. They have been charitably described as “tight-lipped,” refusing to provide key details as of late Sunday afternoon. See Washington Post, Dadeville shooting: 4 dead at Alabama teen’s birthday party. At least four were killed and two dozen injured. There was so much blood at the scene that a fire tanker was enlisted to wash the blood off the sidewalks with firehoses on Sunday morning. Such was the tragic ending to a Sweet 16 birthday party.
Alabama was the first state to pass “permitless carry” of concealed firearms (in March 2022). Since then, twenty-four more states have passed similar legislation, meaning that in half the states in America, you should assume everyone you are speaking to is carrying a concealed weapon. It would be foolish not to.
The legislators in those twenty-five states are morally responsible for the deaths of innocent children, workers, and bystanders. They have bidden a world in which gun ownership is easier than applying for a job, obtaining a driver’s license, or using a credit card. There is blood on their hands, and no amount of power washing the blood from sidewalks will remove the stain.
The most dangerous cities in America overlap almost entirely with the map of permitless carry (although there are outliers: e.g., Oakland, Philadelphia). Alabama lays claim to two of the most dangerous cities in America. The Safest Cities in America | MoneyGeek.com More guns have made citizens of Alabama less safe, not more so.
Americans are fed up. A recent survey by the Navigator Group finds a dramatic increase in the number of Americans who believe gun violence is a top national priority. For tragic reasons, concern over guns is now the third-ranking priority among Americans—behind only inflation and jobs. Strong majorities of Democrats and Independents believe that gun laws should be strengthened—as do 38% of Republicans.
The numbers are turning against Republicans on the gun issue. Combined with reproductive liberty, the climate crisis, and attacks on LGBTQ rights, MAGA extremists have picked the wrong side of nearly every major social and political issue challenging America. Although they can control legislation through gerrymandered legislatures, that is a losing game over time. Democrats can win at the statewide and national level—where they can block G.O.P. lawlessness and enact gun reform.
We have a path forward—through grass-roots politics. It will be long and arduous, but we have a path forward. Let’s take it.
The Supreme Court will issue a ruling on mifepristone withdrawal on Wednesday.
Barring an unforeseen development, the U.S. Supreme Court will issue a ruling by 11:59 PM on Wednesday. The Court’s ruling will signal just how far the Court is willing to extend the constitutional injury inflicted in Dobbs. Any reasonable Court would dismiss the case for lack of standing or, at the very least, stay the order revoking the F.D.A.’s approval of mifepristone until the Fifth Circuit and Supreme Court can hear the appeal from Judge Kacsmaryk’s order on full briefing.
But . . .if the Court allows any part of Judge Kacsmaryk’s order to remain in place, it will have facilitated a judicial revolution of staggering proportions. Though conservatives routinely rail against “judicial activism,” Judge Kacsmaryk’s order is judicial activism on jet fuel. He presumes to himself the scientific knowledge to second-guess a congressionally mandated arbiter of drug safety and efficacy. The F.D.A. has thousands of scientists with thousands of years of combined experience testing drugs, but Judge Kacsmaryk believes that his religious principles are sufficient to overcome that experience.
If the Supreme Court fails to block Judge Kacsmaryk’s order in its entirety, we are entering a new era of jurisprudence in which the federal judiciary will become the “super-regulator” of medicines, products, and services currently regulated by agencies created by Congress. That would be an astonishing result, but we cannot underestimate the religious fervor motivating justices Alito, Kavanaugh, Barrett, Thomas, and Gorsuch—all Catholics who have allowed their faith to overrule their loyalty to the Constitution. (Yes, I know that Gorsuch has joined his wife’s Episcopalian congregation where his children attend school.)
Republicans are not happy about Kacsmaryk’s ruling—because they are not talking about it. See HuffPo, Republicans Are Silent On The Abortion Pill Ruling, Despite Confirming The Judge Behind It. Or rather, those Republicans who are talking about it are telling the anti-choice extremists in their ranks to “knock it off” and “quit while you are ahead.” Even Senators who are usually willing to back extreme positions (Cruz, Hawley) have declined comment.
Another signal that Republican extremism on reproductive liberty has offended conservative Republicans was the announcement by a prominent DeSantis backer that he was “pausing” his support for DeSantis because the governor signed a six-week abortion ban. When Republican megadonors begin to flee leading Republican candidates for the 2024 nomination, you know that the G.O.P. has lost touch with the American people.
I cannot leave this topic without noting the corruption that surrounded Judge Kacsmaryk’s confirmation hearing. Like all nominees, he was required to advise the Senate of all publications. When he was nominated, an article he authored had been accepted for publication by The Texas Review of Law and Politics. Rather than disclose the article to the Senate as required, he called the law journal and asked that the journal remove his name—as sole author—and substitute two different people as authors.
There is no other word to describe Kacsmaryk’s action except “fraud.” An article written by Kacsmaryk and accepted for publication was published under another person’s name for the purpose of concealing Kacsmaryk’s authorship. See WaPo, The controversial article Matthew Kacsmaryk did not disclose to the Senate. When Democrats again control the House, they should consider impeaching Kacsmaryk for lying to the Senate.
More on Justice Thomas’s corruption.
Like clockwork, we have learned of another misrepresentation in Justice Thomas’s financial disclosure forms. It turns out that Thomas has been reporting income from a defunct entity for nearly a decade. See Bloomberg, Justice Thomas Reported Income From Defunct Firm (reporting on a WaPo story). While the error may have been inadvertent, the oversight is reckless. By attributing income to a non-existent entity, Thomas could have concealed the true source of his income. Whether he did deserves to be investigated.
There is no doubt that Justice Thomas violated the statute that governs his disclosure obligations (5 U.S.C. app. 104), which imposes civil and criminal liability for omitting required information or misstating included information. (Section 104 applies to the Chief Justice and Associate Justices of the Supreme Court. See 5a U.S. Code § 109.) Thomas has both omitted required information and misstated included information. It is up to Merrick Garland and John Roberts to investigate. See Chris Geidner, Clarence Thomas's problems are also a John Roberts problem (lawdork.com)
[MORE]
Robert B. Hubbell Newsletter
#News#political#Robert B. Hubbel Newsletter#Robert B. Hubbell#Justice Thomas#Corrupt SCOTUS#Judge Kacsmaryk#women's rights#abortion rights#reproductive rights#gun violence#gun control#ban assault weapons
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Fuck this place
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(via Judge Who Could Ban Abortion Pill Doesn't Want the Public to Know When the Hearing Is)
On Friday, federal Judge Matthew Kacsmaryk held a conference call with the lawyers involved in the case that could result in a national ban of the abortion drug mifepristone. He wanted to talk about the hearing that’s taking place this Wednesday in Amarillo, Texas, that may well end in him immediately banning the pill. Specifically, Kacsmaryk said he wanted to keep the hearing off the online public docket as long as possible “to try to minimize disruptions and possible protests,” the Washington Post reported, because “courthouse members have received threats in the wake of the lawsuit.”
he wants to make sure he can fuck over US women in the dark - without being so exposed...
Judge Matthew Kacsmaryk - you’re gonna hear more about this “judge”
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Republicans, at least the ones who matter, are at war with democracy. Under Trump, they have taken off the masks.
Defeating Republicans by voting Democratic or for Democratic-leaning candidates is the only way to preserve democracy in the US. Last week the decisive defeat of a Trumpist Big Lie election denier was made possible, in part, by a high turnout of younger voters in Wisconsin.
[S]cores of down vest-wearing, smartphone-gazing students at the University of Wisconsin-Eau Claire in a line that snaked around every corner of a campus building as they waited to cast a ballot for an open seat on the Wisconsin Supreme Court.
When the votes were tallied at the end of the night, some 883 people had cast ballots at the campus polling place — more than any other precinct in Eau Claire, and nearly six times as many as voted there in a similar election four years earlier. And 87% of the students had voted for Democrat Janet Protasiewicz — perhaps a rejection of her Republican opponent Dan Kelly’s lifelong opposition to abortion and his work trying to overturn Joe Biden’s 2020 election victory.
The surge in young-voter turnout was a key reason why Protasiewicz won a landslide, 11-point victory in a key swing state that Biden had only won by just over 20,000 votes three years earlier.
The lesson is simple: if you don’t want authoritarian fundamentalist fanatics running your city/county/school district/state/country then vote in every election in high numbers to defeat them.
Of course the challenge is greater in places where the GOP has gerrymandered itself into a supermajority.
[T]ake a look around to Nashville, Tenn., where white GOP lawmakers stunned the nation by expelling two Black colleagues and disenfranchising their roughly 140,000 predominantly African American constituents because the men had, from the floor of the Capitol, joined a thousand or so young people protesting gun violence. (A white female Democrat who also protested kept her seat by one vote.)
The Tennessee expulsions, tinged with a racism that echoed from 1960s civil rights protests with deep roots in Nashville’s once-segregated lunch counters, showed America just how far Republicans are willing to go to hold power — by nullifying the votes of Black and brown voters and drowning out the voices of young people who thoroughly reject Republican dogma around AR-15 assault rifles, transgender athletes, or banning abortion.
Previous lack of sufficient interest by moderate to progressive voters had permitted democracy-hating Republicans to become entrenched in many places. Removing such people from power is going to be prolonged electoral trench warfare.
What’s more, this political counterrevolution in legislative corridors is taking place right as the conservative movement’s grand project of the last half-century — a ruthless, multimillion-dollar crusade to install unaccountable, lifetime right-wing judges across the federal bench — is coming to full fruition. Good Friday’s decision by Amarillo, Texas-based federal Judge Matthew Kacsmaryk, a Donald Trump appointee rooted in ultraconservative networks, seeking to undo approval of the abortion drug mifepristone after 23 years on the market is a huge end run around democracy in a nation where a majority of voters support abortion rights. Conservatives routinely file lawsuits in Amarillo because Kacsmaryk is that district’s lone judge.
The next time somebody you know voices support for some ineffectual third-party presidential candidate, remind them of Donald Trump’s lifetime appointment of anti-abortion fanatic Federal Judge Matthew Kacsmaryk in Texas.
Continuing with the metaphor of anti-democracy warfare...
Republicans are responding with an asymmetrical civil war against democracy, constantly looking for the weak points to deploy their IEDs of autocracy, determined to blow up the American Experiment if that’s what it takes to retain power by any means necessary. Their tactics are working well, unfortunately. Darth Vader’s Death Star had just one opening to exploit, but U.S. democracy has many — gerrymandering, the filibuster, the Electoral College, the undemocratic makeup of the U.S. Senate, statehouse power plays against home rule for Black or brown or progressive-minded communities, a take-no-prisoners hijacking of the judiciary. The only shock of Thursday’s next-level expulsion of two duly elected Black lawmakers in Nashville was the proof that — as Republican ideas become more unpopular — there is no bottom to how low this movement will go.
And the targeting of these two young Black activists — Reps. Justin Jones of Nashville and Justin Pearson of Memphis — should have removed any lingering doubts around what the GOP’s war on democracy is ultimately all about: white power.
The anti-democracy Republicans are well armed, that’s why we have to fight smart. They got Roe v. Wade overturned because they were persistent and patient. We need to steal patience and persistence from them.
And yet there is also reason for great hope. America’s young people — the ones who left their classrooms last week and overran the state capitol in Nashville to plead for real action against gun violence, the ones fighting book bans in their schools and speaking out for radical action on climate — are the bravest and boldest generation this nation has seen in some time. Their moral authority, and their rising power at the ballot box from Eau Claire to Memphis, is why a decrepit GOP is lashing out. History will surely remember what happened in Tennessee as an affront to democracy — and the last throes of a dying movement.
The GOP is very much like Putin and his clique of sycophants. They like to talk tough, but when seriously challenged in conflict they show themselves to be weaker than the image they like to project.
#republicans#the gop#anti-democracy#wisconsin#janet protasiewicz#the youth vote#tennessee#gerrymandering#racism#justin pearson#justin jones#tennessee legislature#matthew kacsmaryk#anti-abortion fanatic#a woman's right to choose#the sanctity of reproductive freedom#donald trump#federal judges#fight smart to protect democracy#vote blue no matter who#be brave like ukraine#will bunch
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It's hard to believe the year is 2023.
via IG: moveon (4/7/23)
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Connecting The Dots
What follows is a portion of Robert Hubbell’s newsletter from yesterday, looking back at last week and connecting the dots to see the broader picture.
A Reflection On Last Week
Robert E. Hubbell
10 April 2023
Tonight, I offer a reflection on last week—and a suggestion about how we must respond. We went into last week expecting the news to be dominated by Trump’s arraignment. It was—until the…
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#Daniel S Perry#Judge Matthew Kacsmaryk#Justice Clarence Thomas#Robert Hubbell#Tennessee legislators ousted#Texas Governor Greg Abbott
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U.S. judge rejects Biden administration's LGBT health protections
U.S. judge rejects Biden administration’s LGBT health protections
U.S. judge rejects Biden administration’s LGBT health protections
A federal judge in Texas ruled on Friday that President Joe Biden’s administration had wrongly interpreted an Obamacare provision as barring health care providers from discriminating against gay and transgender people.
U.S. District Judge Matthew Kacsmaryk in Amarillo ruled that a landmark U.S. Supreme Court decision in 2020…
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Mike Luckovich, Atlanta Journal Constitution
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No More Mifepristone
Joyce Vance
On the Friday before Easter, just after the end of the workweek in Texas, a federal judge in Amarillo decided that Mifepristone, one of two key drugs used for medicated abortion, should be banned. This despite 20 years of data showing it’s safe and effective. Mifepristone has a lower rate of complications than Tylenol.
The judge also entered a stay, which means his order won’t go into effect for seven days. He did it to give the government an opportunity to appeal. But if neither the Fifth Circuit Court of Appeals, deeply conservative after a tranche of Trump appointments, nor the Supreme Court orders a lengthier extension, legal access to Mifepristone will come to an end. Not just in Texas, but nationwide.
The government didn’t need seven days. It filed its appeal to the Fifth Circuit Court of Appeals a few hours after the decision.
DOJ was prepared to file immediately because they understood the inevitable ruling in this case. Judge Matthew Kacsmaryk, who the plaintiffs judge-shopped for by filing this case in the Amarillo division where virtually all cases are assigned to him, has a background of deep antagonism to letting pregnant people make their own decisions. Kacsmaryk’s legal ruling affects the entire country, not just Texas. A federal district judge in Washington State entered a ruling ordering the FDA to keep Mifepristone on the market, just moments after the Texas ruling. But Kacsmaryk entered a nationwide injunction that rescinds the FDA’s approval of Mifepristone nationwide—even in states where abortion is still legal and without exception for the mother’s health.
That’s not the legal landscape the Supreme Court said it was creating when it ended 50 years of abortion rights under Roe v. Wade in the Dobbs case. When the Court decided Dobbs, it said decisions about whether and under what circumstances abortion should be legal would be left up to each state. But now, Judge Kacsmaryk has made that decision for all of us—you and me, for our mothers, daughters, sisters, aunts, and friends, regardless of medical necessity or our personal religious and moral beliefs. Judge Kacsmaryk knows best.
Challenged legal rulings are typically stayed to preserve the status quo while appeals work their way through the courts. But the post-Trump, uber-conservative Supreme Court has always had a different jurisprudence when it comes to abortion, permitting restrictive measures like Texas’s SB-8 vigilante-justice law to go into effect while the appeal was pending. Nothing says “result-oriented” like special rules for anti-abortion litigants (to say nothing of reversing the long-standing precedent of Roe that had worked well to balance rights and did not meet the Court’s test for when precedent should be reversed). It’s tempting to think the Court might decide the Mifepristone decision is a bridge too far, if not based on legal principles and the expectations it set when it decided Dobbs, then out of purely pragmatic political considerations some of Justice Clarence Thomas’s billionaire friends might want to see in order to avoid steep Republican losses at the polls following yet another anti-abortion decision. But it’s difficult to imagine this Court walking it back so close to its goal of extinguishing abortion rights. DOJ has strong arguments to make on appeal—compelling ones on threshold issues like whether the plaintiffs had standing to bring this case, as well as on the merits. Whether the Court will give them a fair hearing is an entirely different matter.
Soon we’ll find out if the Court meant it when it said abortion would be up to the states. Or if one judge in Texas can resurrect the long-disfavored Comstock Act and terminate people’s rights across America. The Act is an 1873 law that makes it illegal to advertise or mail anything, including information, related to preventing contraception or producing abortion (as well as outlawing sending “obscene, lewd or lascivious,” “immoral,” or “indecent” publications). The Comstock Act fell into disuse because of its effect on First Amendment rights—it involves prior restraint by the government on speech. The prohibition on materials and items related to contraception was removed after the Supreme Court’s 1965 decision in Griswold v. Connecticut, which held that Connecticut’s “mini-Comstock” law unconstitutionally invaded the privacy rights of married couples. Be concerned about where a resuscitation of this law could lead.
Restricting abortion today does not seem to be about good-faith conservative values and protecting the sanctity of life. It’s hard to believe that a party that denies access to basic medical care and education and that lets schoolkids die at the hands of mass shooters in the name of the Second Amendment is deeply committed to unborn children, unless it’s become somehow morally righteous to protect them only until they leave the womb. Ending abortion is a political rallying cry, used to bring voters to the polls and raise money, with a healthy side effect of owning uppity liberal women.
It’s really not that difficult: If you’re against abortion, don’t get one. We live in a pluralistic society and there are religions other than conservative Christianity, for instance Judaism, that command their followers to protect the life of a mother over that of an unborn fetus. Somehow their rights are now ignored, while a minority that has gained control of the Supreme Court dictates to the rest of us.
Interestingly, banning Mifepristone isn’t just part of the trend to make abortion less available; it’s also part of the trend to make it less safe and to endanger women’s lives. I spoke with Jesanna Cooper, a friend and a doctor in Birmingham, who is an experienced Ob-Gyn. She told me, “The take-home is that without mifepristone, more people will hemorrhage and/or get septic from incomplete expulsion of the products of conception.” Using Misoprostol, the other drug used in a medication abortion procedure, alone is “less effective,” she says. It involves the “same amount of pain but [is] more likely to be incomplete, which can be dangerous.” It doesn’t sound very pro-life.
More information about the two drugs, if you want to read some of the science, is here.
In 1996 then-Congresswoman Patricia Schroeder (D-CO) tried to convince the House to take the Comstock Act off the books. They didn’t. But her floor speech has resonance today. She explained that the Act was named for a man named Anthony Comstock, who “was one of these people who decided only he knew what was virtuous and right, and somehow he managed to convince all sorts of people that this was correct.” That sounds familiar.
She continued, “Anthony Comstock was a religious fanatic who spent his life in a personal crusade for moral purity—as defined, of course, by himself. This crusade resulted in the arrest and imprisonment of a multitude of Americans whose only crime was to exercise their constitutional right of free speech in ways that offended Anthony Comstock. Women seemed to particularly offend Anthony Comstock, most particularly women who believed in the right to plan their families through the use of contraceptives, or in the right of women to engage in discussions and debate about matters involving sexuality, including contraception and abortion.” We don’t need a new Anthony Comstock, and we don’t need Judge Kacsmaryk to dictate health care—or the absence of it—to people across the country.
You know what the solution is: go vote. Democrats will need sufficient majorities in both houses of Congress to restore protections for abortion. It’s not enough to win the House or the Senate; Democrats must take both to ensure access to abortion, and 2024 is not that far off.
We’re in this together,
Joyce
[Civil Discourse With Joyce Vance]
#Rabid Right#Joyce Vance#Civil Discourse With Joyce Vance#Judge Kacsmaryk#Civil Rights#women's rights#human rights#reproductive rights#liberty#Health Care#women's health#Comstock Act#Corrupt Judges#Corrupt SCOTUS
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There is no scenario in which Trump is elected and Republicans do not control the Senate. (Remember, the best case scenario for Democrats is 50-50, which isn’t good enough with a Republican Vice President. And the 2026 midterm map offers no apparent pick-up opportunities for Democrats.) That means that not only will Trump have clear sailing for his Cabinet nominations, he will likely fill another 200 or more federal judges, now in the mold of Kacsmaryk. Plus with both Thomas and Alito approaching 80, Trump will have the opportunity to replace them with young, equally MAGA justices.
Democracy Is Not a Spectator Sport
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I was just thinking: I have too many rights. We’ve got to cull, cull, cull! Do I really need to be voting and controlling my own body? That feels like much too much. Also, it’s spring! What better time to go through all the rights and see which ones spark joy (access to assault weapons) and which ones don’t (uncensored proximity to books, bodily autonomy). Just like they’re doing in Florida! Constitution? Please! If we were all meant to be covered by it, we would have been explicitly included!
Isn’t all this rights nonsense getting in the way of more important things, like the ability of the U.S. Court of Appeals for the 5th Circuit to consider exciting hypotheticals not borne out by science: What if a drug that has been proven safe for decades … weren’t? Plus, millions of Americans have been given the gift of learning the name Matthew J. Kacsmaryk, most often used in the sentence, “Wait, Judge Kacsmaryk can undo the FDA approval of a drug used safely by millions for 20-plus years just … because?” It was good that the 5th Circuit did not need to think about the people most impacted by the decision to overturn Food and Drug Administration approval. After all, we’re not really people! If we were supposed to be people, we wouldn’t have uteruses.
Clearly, I have been addled by having too many rights, too much autonomy. All the voting had gone to my head. I see that now.
Alexandra Petri: Great abortion pill ruling, 5th Circuit! I felt too much like a person.
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Supreme Court will decide access to key abortion drug mifepristone - The Washington Post
https://www.washingtonpost.com/politics/2023/12/13/abortion-drug-supreme-court-mifepristone-fda/
The Supreme Court announced Wednesday that it will decide this term whether to limit access to a key abortion drug, returning the polarizing issue of reproductive rights to the high court for the first time since the conservative majority overturned Roe v. Wade last year.
The Biden administration and the manufacturer of mifepristone have asked the justices to overturn a lower-court ruling that would make it more difficult to obtain the medication, which is part of a two-drug regimen used in more than half of all abortions in the United States.
The conservative U.S. Court of Appeals for the 5th Circuit said the federal government acted unlawfully years ago when it began loosening regulations for obtaining the pill. The appeals court said the Food and Drug Administration did not follow proper procedures when it allowed the drug — which was first approved more than 20 years ago — to be taken later in pregnancy, to be mailed directly to patients and to be prescribed by a medical professional other than a doctor.
Medications to terminate pregnancy have increased in importance because more than a dozen states severely limited or banned abortions after the Supreme Court’s ruling last June in Dobbs v. Jackson Women’s Health Organization. That’s partly because the drugs can be sent by mail and taken at home.
If access to mifepristone was restricted, abortion providers and advocates say, pregnancies could still be terminated using only the second drug in the regimen, misoprostol. But using that drug alone causes more cramping and bleeding, and abortion opponents could move to restrict its use as well if they win limits on the use of mifepristone from the high court.
[ Faced with abortion bans, doctors beg hospitals for help with key decisions ]
The court’s decision to review the mifepristone case is not surprising. In April, after a District Court ruling to suspend FDA approval of the drug, the justices said existing rules for prescribing and distributing mifepristone would remain in place nationwide while the litigation continues.
In that order, only Justices Clarence Thomas and Samuel A. Alito Jr. said they would not have granted the Biden administration’s request for a stay of the District Court decision. Critics say the lower court’s ruling undermines the role of federal regulatory agencies.
Solicitor General Elizabeth B. Prelogar told the high court that mifepristone has been safely used by millions of people over more than two decades, and warned that allowing the lower court’s decision to stand would have “damaging consequences for women seeking lawful abortions and a healthcare system that relies on the availability of the drug under the current conditions of use.”
The challenge to mifepristone was initiated by the Alliance for Hippocratic Medicine, an association of antiabortion doctors and others. The group asserted that the FDA did not sufficiently consider safety concerns when it approved the drug in 2000 or when it removed some restrictions years later — allowing the use of mifepristone through 10 weeks of pregnancy, for instance, instead of seven.
The group filed its lawsuit in Amarillo, Tex., where U.S. District Judge Matthew J. Kacsmaryk — a Trump nominee with long-held antiabortion views — is the sole sitting judge. He sided with the challengers and suspended FDA approval of the medication.
The 5th Circuit reversed that part of Kacsmaryk’s order, but agreed with him in blocking the changes starting in 2016 for how the drug was prescribed and distributed, and at what point in a pregnancy it could be used.
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On Tuesday, the Supreme Court of the United States will hear oral arguments in a challenge to abortion pill access across the country, including in states where abortion is legal. The stakes for abortion rights are sky-high, and the case is the most consequential battle over reproductive health care access since Roe v. Wade was overturned in 2022.
At the center of this fight is mifepristone, a pill that blocks a hormone needed for pregnancy. The drug has been approved by the US Food and Drug Administration for more than two decades, and it’s used to treat some patients with Cushing’s syndrome, as well as endometriosis and uterine fibroids. But its primary use is the one contested now—mifepristone is the first of two pills taken in the first 10 weeks of pregnancy for a standard medication abortion, along with the drug misoprostol.
If the justices side with the antiabortion activists seeking to limit access to mifepristone, it could upend nationwide access to the most common form of abortion care. A ruling that invalidates mifepristone’s approval would open the door for any judge to reverse the FDA approval of any drug, especially ones sometimes seen as controversial, such as HIV drugs and hormonal birth control. It could also have a chilling effect on the development of new drugs, making companies wary of investing research into medicines that could later be pulled from the market.
Pills are now the leading abortion method in the US, and their popularity has spiked in recent years. More than six in 10 abortions in 2023 were carried out via medication, according to new data from the Guttmacher Institute. Since rules around telehealth were relaxed during the Covid-19 pandemic, many patients seeking medication abortions have relied on virtual clinics, which send abortion pills by mail. And it keeps getting more popular: Hey Jane, a prominent telemedicine provider, saw demand increase 73 percent from 2022 to 2023. It recorded another 28 percent spike comparing data from January 2023 to January 2024.
“Telemedicine abortion is too effective to not be in the targets of antiabortion folks,” says Julie F. Kay, a longtime reproductive rights lawyer and director of the advocacy group Abortion Coalition for Telemedicine.
Tomorrow’s argument comes after a long, tangled series of legal disputes in lower courts. The Supreme Court will be hearing two cases consolidated together, including FDA v. Alliance for Hippocratic Medicine, in which a coalition of antiabortion activists filed a suit challenging the FDA’s approval of mifepristone, asking for it to be removed from the market. The Alliance for Hippocratic Medicine is represented by the Alliance Defending Freedom, a right-wing Christian law firm that often takes politically charged cases.
Despite decades of scientific consensus on the drug’s safety record, the Alliance for Hippocratic Medicine has alleged that mifepristone is dangerous to women and leads to emergency room visits. A 2021 study cited by the plaintiffs to back up their claims was retracted in February after an independent review found that its authors came to inaccurate conclusions.
In April 2023, the Trump-appointed judge Matthew Kacsmaryk of the Northern District of Texas issued a preliminary ruling on the FDA case invalidating the agency’s approval of mifepristone. The ruling sent shock waves far beyond the reproductive-rights world, as it had major implications for the entire pharmaceutical industry, as well as the FDA itself; the ruling suggested that the courts could revoke a drug’s approval even after decades on the market.
The US 5th Circuit Court of Appeals narrowed Kacsmaryk’s decision a week later, allowing the drug to remain on the market, but undid FDA decisions in recent years that made mifepristone easier to prescribe and obtain. That decision limited the time frame in which it can be taken to the first seven weeks of pregnancy and put telemedicine access, as well as access to the generic version of the drug in jeopardy.
Following the 5th Circuit ruling, the FDA and Danco Laboratories sought emergency relief from the Supreme Court, asking the justices to preserve access until it could hear the case. In its legal filing, Danco aptly described the situation as “regulatory chaos.”
SCOTUS issued a temporary stay, maintaining the status quo; the court ultimately decided to take up the case in December 2023.
As all this was unfolding, pro-abortion-rights states across the country were passing what are known as shield laws, which protect medical practitioners who offer abortion care to pregnant patients in states where abortion is banned. This has allowed some providers, including the longtime medication-abortion-advocacy group Aid Access, to mail abortion pills to people who requested them in states like Louisiana and Arkansas.
Though the oral arguments before the Supreme Court begin on Tuesday, it will likely be months before a ruling. Court watchers suspect a decision may be handed down in June. With the US presidential election in the fall, the ruling may become a major campaign issue, especially as abortion access helped galvanize voters in the 2022 midterms.
If the Supreme Court agrees with the plaintiffs that mifepristone should be taken off the market, some in the pharmaceutical industry worry that it will undermine the authority of the FDA, the agency tasked with reviewing and approving drugs based on their safety and efficacy.
“This case isn't about mifepristone,” says Elizabeth Jeffords, CEO of Iolyx Therapeutics, a company developing drugs for immune and eye diseases. Jeffords is a signatory on an amicus brief filed in April 2023 that brought together 350 pharmaceutical companies, executives, and investors to challenge the Texas district court’s ruling.
“This case could have easily been about minoxidil for hair loss. It could have been about Mylotarg for cancer. It could have been about measles vaccines,” Jeffords says. “This is about whether or not the FDA is allowed to be the scientific arbiter of what is good and safe for patients.”
Greer Donley, an associate professor of law at the University of Pittsburgh and an expert on abortion on the law, doesn’t think it’s likely that the court will revoke mifepristone’s approval entirely. Instead, she sees two possible outcomes. The Supreme Court could dismiss the case or could undo the FDA’s decision in 2023 to permanently remove the in-person dispensing requirement and allow abortion by telehealth. “This would be an even more narrow decision than what the 5th Circuit did, but it would still be pretty devastating to abortion access,” she says.
The Supreme Court could also decide that the plaintiffs lack a right to bring the case to court, says David Cohen, a professor of law at Drexel University whose expertise is in constitutional law and gender issues. “This case could get kicked out on standing, meaning that the plaintiffs aren't the right people to bring this case,” he says. “If most of the questions are about standing, that will give you a sense that that's what the justices are concerned about.”
As the current Supreme Court is considered virulently antiabortion, reproductive-health-care workers are already preparing for the worst. Some telehealth providers have already floated a backup plan: offering misoprostol-only medication abortions. This is less than ideal, as the combination of pills is the current standard of care and offers the best results; misoprostol on its own can cause additional cramping and nausea. For some providers who may have to choose between misoprostol-only or nothing, it’s better than nothing.
Abortion-rights activists have no plans to give up on telehealth abortions, regardless of the outcome of this particular case. “Let us be clear, Hey Jane will not stop delivering telemedicine abortion care, regardless of the outcome of this case,” says Hey Jane’s CEO and cofounder, Kiki Freedman.
“They’re not going to stuff the genie back in the bottle,” Kay says.
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The Republican Taliban?
It would be a misstatement to say that Republican males hate women. They don’t hate us, but they also don’t see us as equals, either physically, intellectually, or culturally. We are, it would appear, put on this earth for their pleasure, to meet all their needs – sexually, taking care of their homes, cooking their meals, etc. Sadly, they have convinced many Republican women that this is the…
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#Comstock Act#Food & Drug Administration (FDA)#Joyce Vance#Judge Matthew Kacsmaryk#Mifepristone#Supreme Court&039;s Dobbs decision#U.S. Department of Justice#women&039;s rights
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