More Suspicious Republican Ties to Today's Mifepristone Case
With the Supreme Court hearing oral arguments in perhaps one of the most pivotal cases this year, we need to take a look at the behind-the-scenes effort by GOP players with huge political ties.
Today the Supreme Court will hear oral arguments in FDA v. Alliance for Hippocratic Medicine which concerns Mifepristone, a drug that the US Food and Drug Administration (FDA) approved in 2000 as safe and effective for terminating early pregnancies. The case is one of the most highly anticipated cases this year, and could dramatically curtail access to Mifepristone, a medication that is now used in 63% of all abortions in the United States.
The plaintiffs in this case are Alliance Defending Freedom, a legal organization that was involved in Dobbs v. Jackson Women’s Health Organization, which ultimately led to the fall of Roe v. Wade. Erin Hawley, wife of conservative Missouri Senator Josh Hawley, who sits on the Senate Judiciary Committee, serves as senior counsel at the ADF.
The lawsuit was originally filed by Erin Hawley and her organization in Amarillo, Texas where US District Judge Matthew Kacsmaryk — a Trump nominee with long-held antiabortion views presides as the sole sitting judge. Before his federal appointment, Kacsmaryk donated $500 to Josh Hawley’s campaign in 2018, in addition to giving money to anti-abortion proponents and Republican heavy hitters Senators John Cornyn and Ted Cruz, and Texas Governor Greg Abbott.
On April 7, 2023, Judge Kacsmaryk suspended the FDA’s nearly 25-year approval of Mifepristone, which resulted in nationwide legal and medical chaos, as clinics were unsure on whether they could provide medication abortion pills to patients, or if enforcement of the ruling would result in legal jeopardy. In his ruling Kacsmaryk determined that the “FDA acquiesced on its legitimate safety concerns — in violation of its statutory duty — based on plainly unsound reasoning and studies that did not support its conclusions.”
Kacsmaryk also made a point to decree that the FDA had initially capitulated to political pressure by approving the drug more than 20 years ago and continued to placate political demands by lifting more restrictions on Mifepristone for the next 20 years. According to Kacsmaryk’s opinion on the case “the lack of restrictions resulted in many deaths and many more severe or life-threatening adverse reactions.”
In his 67-page ruling, Judge Kacsmaryk called abortion providers “abortionists” and described the use of Mifepristone as killing or “starv[ing] the unborn human until death.” Kacsmaryk also decried that the FDA “exceeded its authority” in approving Mifepristone, and alleged the agency used an accelerated approval process otherwise meant for drugs that are intended to treat “life-threatening diseases” and provide a “meaningful therapeutic benefit” for patients.
Shortly after the Kacsmaryk ruling disrupted access to the medication, US District Judge Thomas Rice in the Eastern District of Washington State determined in his own 31-page ruling that the FDA should not change “the status quo” related to Mifepristone. This ruling ultimately maintained and protected access to the drug for plaintiffs in the case, which included 17 states and Washington, DC.
On August 16, 2023, a three-judge panel of the ultra-conservative US Court of Appeals for the 5th Circuit determined that Mifepristone needed additional regulations in order to stay on the market after the Justice Department (DOJ) and the drug manufacturer Danco Laboratories appealed the ruling by Judge Kacsmaryk. The Court declined to suspend approval of Mifepristone overall, but reversed actions taken by the FDA to loosen restrictions on how to obtain the medication.
The 5th Circuit found that the federal government, through the FDA, did not follow the proper process when it loosened regulations in 2016, to make the pill more easily available both by lessening restrictions in its use during the later months of pregnancy, and by allowing access to mailed prescriptions sent directly to patients by a medical professional other than a doctor.
In this case, the DOJ emphasized the FDA’s reliance on dozens of studies involving thousands of patients to approve Mifepristone, a medication which has been used by more than 5 million women with serious side effects occurring in fewer than 1 percent of patients. Additionally they argued that the antiabortion challengers, led by Erin Hawley, had no legal right — or standing — to file the lawsuit because they were not directly harmed by the FDA’s approval of the abortion pill.
One of the judges who served on this 5th Circuit panel was James Ho, another Donald Trump appointee, who happened to swear in Judge Kacsmaryk when he took the bench in 2019. From 2018 through 2022, beginning one year after Ho’s appointment, Erin Hawley’s Alliance Defending Freedom, made at least six payments to Judge Ho’s wife, Allyson, a powerhouse federal appellate lawyer who has argued in front of the US Supreme Court with deep connections to the conservative legal movement leading the attack on the right to abortion.
According to James Ho’s financial disclosures, Allyson Ho accepted honoraria, or speaking fees, from the ADF every year between 2018, and 2021, who also paid her travel expenses for some of those events. Allyson Ho was paid $3,000 in 2020 for an event listed as the “Alliance Defending Freedom Academy,” and she received $1,000 for another Alliance Defending Freedom event in 2021. Additional court filings also indicate that Allyson Ho worked alongside ADF lawyers on an unsuccessful petition to the Supreme Court regarding prayer before public political meetings.
The US Code of Conduct for federal judges states that judges “must avoid all impropriety and appearance of impropriety,” specifically denoting that: “A judge should not allow family, social, political, financial, or other relationships to influence judicial conduct or judgment.” According to Stephen Gillers, a New York University emeritus professor of law and author of Regulation of Lawyers: Problems of Law and Ethics, these payments to Allyson do not constitute a direct violation of the court’s code of conduct.
But the appearance of a conflict like this one has direct ramifications for a judge with regard to public perception. “When Americans see a case like this — so clearly concocted and motivated by special interests, and with evident connections between those interests and the judges on the case, it does tremendous damage to the reputation of the courts, and to the public trust in their ability to give all litigants an even shake,” said Alex Aronson, the executive director of the nonpartisan group Court Accountability.
A recent survey done by the American Bar Association found that polling conducted in February of 2023, shows that judges have experienced a significant decrease in public confidence with 63 percent of National Judicial College alumni respondents indicating that public esteem of judges is on the decline.
Today, the case will be heard at the United States Supreme Court, where Justice Clarence Thomas will take place in hearing oral arguments and deciding how to rule on the law. Ginni Thomas, wife to Clarence Thomas, has links to more than half of the anti-abortion groups and individuals who lobbied her husband ahead of their historic decision to overturn Roe v. Wade.
A review of “amicus briefs,” done by Advance Democracy Inc, a non-partisan organization specializing in public-interest research and investigations shows that 51% of the parties who filed amicus briefs calling for an end to a federal abortion right have political connections to Ginni Thomas.
Ginni Thomas’ firm, Liberty Consulting, was also paid $80,000 by judicial activist and friend to her husband, Leonard Leo between June 2011 and June 2012, with $20,000 more expected before the end of 2012. Leo, who has also spent millions on lavish gifts and vacations for Thomas and other Conservative Supreme Court Justices, specified that Ginni Thomas not be named in the payment paperwork.
These are just a few examples of how Ginni Thomas has overstepped the line of impartiality with regard to her advocacy and earnings, and her husbands work, which should remain beyond reproach. A February poll conducted by Marquette Law School this year finds that an overwhelming 60% of adults disapprove of the job that the Supreme Court of the United States is doing.
With new Conservative power couples like the Hawleys and the Hos emulating the financial and political tactics used by Ginni and Clarence Thomas, the anti-abortion movement has secured pro-life legal ringers for every stage of litigation. In addition to the legal analysis on the US Supreme Court decision in this case that scholars will need to make, forensic accountants will now have to review the forthcoming ruling with the same kind of skepticism typically reserved for people on trial. Considering how so many of these judges are intent on disclosing their conflicts in their annual financial reports, and flaunting their conflicts so openly, this might not be such a mighty undertaking.
Amee Vanderpool writes the SHERO Newsletter, is an attorney, published author, contributor to newspapers and magazines, and an analyst for BBC radio. She can be reached at avanderpool@gmail.com or follow her on Twitter @girlsreallyrule.
Paid subscriptions and one-time tributes embedded in each article allow me to keep publishing critical and informative work that is sometimes made available to the public — thank you. If you like this piece and want to support independent journalism further, you can forward this article to others, get a paid subscription or gift subscription, or donate as much as you like today.
Well.............THIS was a depressing read. It's like we're passengers in a car which is driving towards a railroad crossing, and we can see the train coming, but the driver won't stop............
Elections have consequences. All the morons that voted for the orange menace because he was “different,” “not a politician,” “not owned by special interest” or whatever line of bullshit reasoning they used….here we are. And like we told them for years, the so-called anti-abortion movement will never stop at abortion….here we are. Republicans played a long game in court packing, stuffing the judiciary with unqualified corrupt judges intent on pursuing ideology, and democrats let it happen. Dems need to get in the fight and realize they keep bringing a pocket knife to a AR-15 battle. The cons own the judiciary and that is where the real power lies, right or wrong. Dems need to get creative to start getting rid of these judges and reforming the supreme mullah court. Otherwise, as we see, elections are irrelevant as long as the cons have the courts locked up.