What You Need to Know About the Abortion Medication Case
US District Judge Matthew Kacsmaryk will hear oral arguments on Wednesday morning in a pivotal case that could shift the landscape of women’s healthcare even further back into the dark ages. A coalition of Christian-based anti-abortion groups called The Alliance for Hippocratic Medicine, has filed a lawsuit seeking to overturn the Food and Drug Administration’s (FDA) approval of the two pills used in medication abortions.
While a patient who is seeking a medication abortion typically takes both Mifepristone and Misoprostol for the procedure, the petitioners have requested that a preliminary injunction be issued for Mifepristone, and that it be taken off the market nationwide while the case proceeds. Judge Kacmaryk will hear arguments today on whether he should issue this preliminary injunction while litigation continues.
Mifepristone, used in combination with Misoprostol, is the most common method of terminating a pregnancy in the US, and accounts for roughly half of all abortions. The FDA approved Mifepristone in 2000. Medicated abortion is currently legal in 22 states and Washington, DC; and in 15 other states it is accessible with a doctor’s prescription. The two-pill regimen of Mifepristone and Misoprostol has a 0.4% risk of major complications.
There is little legal precedent for a court to overturn a longstanding FDA approval with this kind of safety record, but abortion providers are preparing for the very likely reality that Judge Kacsmaryk, based on his conservative record, will likely grant the injunction request. He was nominated to the bench by Trump.
Kacsmaryk was appointed in 2019, following an extremely controversial and quick confirmation process. His judicial record reflected a proclivity for siding with plaintiffs looking to roll back reproductive and LGBTQ rights or block key Biden administration policies. His appointment was opposed by Senate Democrats, as well as LGBTQ rights groups such as Planned Parenthood and the Human Rights Campaign. Republican Sen. Susan Collins of Maine, who supports abortion rights, also voted with Democrats to oppose Kacsmaryk’s appointment.
Kacsmaryk’s appointment to the United States District Court for the Northern District of Texas was part of an even larger scheme by conservatives to bring right-wing legal causes into a single courtroom where a favorable result was inevitable, and where fair-minded appellate review was non-existent. Here is a passage from an article in Slate, that best describes this strategy to implement a Conservative Jurist from the bench:
“In 1988, Congress left an easily closed loophole in the procedure for assigning cases to federal judges that made such gaming of the system possible. In July 2019, the judges of the Northern District of Texas took advantage of that loophole. They issued a special order funneling to Judge Kacsmaryk every case filed anywhere in the 25,914-square-mile area of the Amarillo Division in which he sits.
Groups throughout the country sharing his religious-political ideology have found it easy to establish a plaintiff’s residence within that sprawling 26-county region. Their goal is to ensure that test cases they design will land on his desk, even though the real forces behind the suit are national or global in reach.”
It is not mere coincidence that Judge Kacsmaryk will be hearing this case; it is a part of a larger scheme to funnel anti-abortion suits through friendly judges and courts at every level starting with the US District Court in Texas. Next the cases will head to the very conservative Fifth Circuit Court of Appeals, and then ultimately land at the feet of the US Supreme Court — a Court which has just overturned Roe v. Wade.
The recent actions of Judge Kacsmaryk also point to a concerning prospect that he is intending to not only place a nation-wide injunction on access to Mifepristone, but that he intended to do it in secrecy. While the public was made aware that a hearing had been scheduled on the case last week, there was no timely official posting for the proceeding on the docket.
Judge Kacsmaryk took the highly unusual step of intentionally delaying public notice of the hearing planned for today in Amarillo, Texas, during a conference call with lawyers last Friday. At this time, Kacsmaryk told both parties that he was considering waiting until late Tuesday to publicly announce the hearing.
During this conference call, Kacsmaryk asked attorneys not to publicize the date of the key hearing, telling them “less advertisement is better.” Kacsmaryk cited his own personal safety as the reason for intentionally keeping the public in the dark on such a pivotal proceeding saying: “To minimize some of the unnecessary death threats and voicemails and harassment that this division has received from the start of the case, we’re going to post that later in the day.”
When the transcript of the conference call was finally made public, and the outrage over the lack of transparency increased even further, the hearing date was finally posted to the docket. This attempt at obfuscating the judicial process, along with Kacsmaryk’s conservative history does not bode well for where things are headed on this impending injunction.
Something else that creates a tell about where Kacsmaryk is heading on this ruling, is that he had considered holding a full trial on the merits of the lawsuit before deciding the preliminary injunction, but ultimately decided to hear arguments on the injunction, which, if granted, would immediately halt distribution of the abortion medication.
The drug at issue now, Mifepristone, is the first drug taken in the two-pill regimen for terminating a pregnancy. If it is no longer available, wait times at brick-and-mortar clinics in states where abortion is legal will likely increase significantly. The capacity of those clinics has already been stretched thin by the flood of patients from states where abortion is illegal, Democratic Attorneys General recently stated in a briefing.
Planned Parenthood and several abortion clinics are already preparing for the possibility that Mifepristone will get pulled off the market. In this event, they will move forward with recommending that patients take Misoprostol on its own. This approach may be less effective than the two pills together, and is more likely to cause negative side effects, but it will be the only option left to women who need treatment.
Stay tuned to SHERO for more on this issue tomorrow, when I will be breaking down the crux of the arguments from both sides and discussing the ruling, or the impending ruling.
Amee Vanderpool writes the SHERO Newsletter and is in an attorney, published author, contributor to newspapers and magazines, and analyst for BBC radio. She can be reached at avanderpool@gmail.com or follow her on Twitter @girlsreallyrule.
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I'm not certain of many things, but this Judge's past can lead us to only one conclusion, and that is that he will do whatever he can from a legal standpoint to restrict/eliminate access to this medication in as any places and in as many ways as he possibly can. The ultra-conservative Fifth Circuit will almost certainly affirm whatever he does. Then, it will go to the Supreme Court. We all know what the Dobbs decision said. Anyone want to take bets on which way the Supreme Court will go when this issue inevitably presents itself before the High Court?
It’s hard enough to practice ethical medicine in a society with so few protections for marginalized people. The law continues to make it harder to do the right thing for patients.