As expected, Trump-appointed Judge Matthew Kacsmaryk anointed himself supreme arbiter of women’s reproductive healthcare in a ruling that withdrew FDA approval for mifepristone, a medication abortion option that has been used safely for more than two decades. Kacsmaryk, a religious fanatic who lacks the clinical training to make such a judgment, made it anyway.
Mark Joseph Stern at Slate lays out what’s at stake:
His order, which applies nationwide, marks the first time in history that a court has claimed the authority to single-handedly pull a drug from the market, a power that courts do not, in fact, have. Kacsmaryk’s ruling is indefensible from top to bottom and will go down in history as one of the judiciary’s most shocking and lawless moments. It goes even further than expected, raising the possibility that he will impose “fetal personhood,” which holds that every state must ban abortion because it murders a human…
Through the combination of Comstock Act enforcement and fetal personhood, Kacsmaryk is laying the groundwork for a federal ban on abortion imposed through the courts. He knows such a ban could never be enacted through the democratic process. So he is apparently intent on delivering it through the judiciary, instead.
On the same evening Kacsmaryk appointed himself Chief Medical Officer of Women, Judge Thomas Rice in Washington State ruled in a separate case, ordering the FDA to continue providing mifepristone. In that case, 18 jurisdictions sued to remove FDA restrictions on the drug.
Stern says the Biden admin will probably appeal both rulings but hopes they will ask the SCOTUS for an emergency stay because the appeals court that will take up the case is also stocked with anti-abortion fanatics who are likely to uphold Kacsmaryk’s decision.
Here’s President Biden’s reaction to the news (via Twitter):
Today, a federal district judge in Texas ruled that a prescription medication available for over 22 years, approved by the FDA, and used safely by millions of women should no longer be approved in the U.S.
Here’s why this matters. And how my Administration is going to fight it.
What’s more – the court in this case has substituted its judgment for FDA, the expert agency that approves drugs.
That means if this ruling were to stand, there would be virtually no prescription approved by the FDA safe from this kind of attack.
We’re going to fight it.
The Attorney General has announced @TheJusticeDept will file an appeal and seek an immediate stay of the decision.
And Congress must restore the protections of Roe v. Wade.
@VP and I are committed to protecting a woman’s right to an abortion. Period.
Of course, Biden knows the current Congress won’t protect women’s healthcare, but a new Congress might if the Dems win a trifecta next year. Most pundits would have dismissed that possibility as a pipedream given the terrible Senate map, etc. But with elected and unelected Republicans gleefully consigning half the population to second-class citizenship and substandard healthcare, who knows?
Stern thinks the SCOTUS will intervene sooner rather than later due to the contradictory rulings from Texas and Washington State, as Dave noted last night, and also to avoid an escalation if the admin agrees with Democrats who are urging the FDA to simply ignore Kacsmaryk’s ruling.
Stern says the FedSoc Six can now prove they weren’t lying when they overturned Roe to “leave the issue to ‘the people and their representatives’ rather than unelected judges.”
I have no idea what they’ll do, but I’m pretty sure if the GOP operatives on the Supreme Court punt instead of taking the maximalist anti-choice position, it will be politics that stays their hand, not judicial restraint. They showed us who they are a long time ago.
Open thread.