‘Ultimate Example of Judge-Shopping’: Ruling Against Abortion Pill Blasted
Approved by the FDA, mifepristone has been available for nearly 25 years
A ruling by a federal judge in Texas, which halted the Food and Drug Administration’s approval of an abortion pill 23 years after the agency gave the drug the green light, is being widely criticized.
Judge Matthew Kacsmaryk of the U.S. Northern District of Texas stayed his order for seven days to give the Biden administration a chance to appeal.
Shortly after, Judge Thomas Rice of the U.S. Eastern District of Washington issued a contradictory order that prohibits the FDA from taking any action that would make the drug, mifepristone, less widely available.
Mifepristone — also known as RU 486 — is used to end a pregnancy during the early part of a pregnancy. It is used up to week 10 of pregnancy (up to 70 days after the first day of your last menstrual period). Mifepristone blocks a natural substance — progesterone — that is needed for a pregnancy to continue.
Making a surprise stop in Nashville, Tenn, Vice President Kamala Harris blasted Kacsmaryk's decision, calling it a “dangerous precedent.”
“There is no question that the president and I are going to stand with the women of America and do everything we can to ensure that women have the ability to make decisions about their health care, their reproductive health care in manner that is what they need, and they decide that, not their government,” the vice president said.
Attorney Lisa Rubin attempted to sort through the confusion of the differing decisions and just what is happening.
“In Texas last night we had a judge who has stayed the FDA’s 2000 approval of mifepristone. That’s not an order to the FDA to do anything. What the plaintiffs had asked for was, in order to withdraw or suspend that approval,” said Rubin, a former litigator and legal analyst for MSNBC. Kacsmaryk “characterizes this as a less draconian remedy, but actually, it’s more dramatic if anything. It’s basically acting as If that approval in 2000 never happened at all.
“Now, at the same time, as you noted, there’s a ruling in our later, from a Washington federal court, that does almost exactly the opposite that cases brought by 18 states, whose attorneys general wanted to join the FDA for making any changes to the existing regulations, in fact, one of the FDA to go even further I remove certain restrictions, that exists today on the availability of mifepristone,” Rubin added. “Right now, you have got the FDA subject to two totally contrary rulings, you’ve got a seven-day pause on the rulings from the judge in Texas, and the Department of Justice, which filed an immediate appeal last night with the fifth circuit that’s a federal court of appeals that oversees the area, including Texas, it is also known as perhaps the most conservative and ideological federal peels court in the country.”
The decision by Kacsmaryk, an appointee Donald Trump's, has been widely condemned for its audaciousness and obvious partisanship.
“This is a breathtaking example of judicial aggressiveness, both in terms of the scope and the breadth of this ruling,” said Elie Honig, a legal commentator and former federal prosecutor in New York. “Essentially what this one judge has done is to substitute his own scientific judgment for 20-plus years of scientific judgment by the FDA. He essentially says, ‘They didn’t do it right,’ even though this drug was approved 20-plus years ago.”
Honig noted that though Kacsmaryk is one lone judge in northern Texas, his decision applies to the entire United States, although this became muddled after Rice’s contradictory decision from Washington State.
“This is the ultimate example of judge-shopping. It’s really one-stop judge shopping because by filing the lawsuit in this particular district, the plaintiffs here assured themselves – 100 percent – they would get this judge, Judge Kacsmaryk, who is very conservative, a Trump appointee,” he said. “It’s a little bit of a glitch in the system, but he happens to be the only judge in that particular vicinage.”
Ultimately, the contradictory rulings guarantees that this matter will end up at the US Supreme Court, according to MSNBC's Rubin.
“Absolutely. There’s no way that this can get resolved without it usually, what we see is what’s called a circuit slip, when two federal appeals courts differ on something and then escalates to the Supreme Court,” she said. “But one of the tools that the conservative movement learned during the Trump administration was how to leapfrog appeals courts and send something directly to the Supreme Court when they wanted a particular outcome.
“Here, I expect the Department of Justice to use that on its own if they don’t get an answer fairly soon from the Fifth Circuit Court of Appeals about whether a stay of Judge Kacsmaryk’s order would happen meaning, they would further pause his order after this coming Friday. They will take that to the Supreme Court and look for some guidance from the court on this.”
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