After the Supreme Court overturned Roe v. Wade in June, many a conservative insisted that anyone claiming this was just the beginning of conservatives’ war on reproductive rights was being needlessly hysterical. Fast-forward seven months and, apparently, not so much—given that 13 states have banned abortion outright, with the procedure restricted in a number of others. And despite the Food and Drug Administration loosening restrictions on mail-order abortion pills—which remain illegal in many states—a Trump-appointed judge is gearing up to effectively ban them nationwide.
Rolling Stone reports that a lawsuit filed by a group called the Alliance for Hippocratic Medicine will be heard by Matthew Kacsmaryk, a judge nominated by Donald Trump in 2019, and will be decided as early as February. The suit challenges the FDA’s approval—more than 22 years ago—of mifepristone, a medication taken in conjunction with misoprostol in order to terminate pregnancies. According to legal experts, the suit would have been immediately thrown out if it were being judged purely on the legal merits, given that its arguments are easily disproved and laughable to boot. According to Rolling Stone, one of those arguments is that a 1873 vice law barring the delivery of “obscene, lewd, or lascivious” items through the mail somehow applies to birth control pills. (As Rolling Stone notes, “before that law stopped being enforced decades ago, federal courts consistently ruled it doesn’t apply to lawful abortions.”) Another is that there was no evidence of safety and efficacy when the drug was originally approved in 2000—a claim that Carrie Flaxman, senior director of public policy litigation and law at the Planned Parenthood Federation of America, told Rolling Stone “is just junk science.” (In fact, medication abortion has been dubbed “safer than Tylenol.”) Lorie Chaiten, a senior staff attorney at the ACLU, told the outlet the suit “is baseless.”
Nevertheless, the Alliance for Hippocratic Medicine might actually have a shot, thanks to its decision to incorporate in Amarillo, Texas, i.e. the domain of Kacsmaryk. Several pro-choice advocates told Rolling Stone they believe there is no question that the group—whose mailing address is actually in Tennessee, according to the outlet—did so in order to get their case in front of an individual who is flagrantly against reproductive rights. What, you might ask, is the basis for describing Kacsmaryk as such, or suggesting he has a high probability of siding with right-wing ideologues?
Perhaps it’s that:
- Prior to receiving his federal appointment, Kacsmaryk served as the deputy general counsel for First Liberty Institute, a conservative Christian litigation outfit currently suing CVS on behalf of a pharmacist who doesn’t want to prescribe abortion pills.
- Or maybe it’s the op-ed he wrote against abortion, same-sex marriage, sex outside of marriage, birth control, and no-fault divorce (yes).
- Or, hey, could it be the opinion he wrote, as a judge, attacking the right to contraception?
- And while it’s not strictly related to reproductive rights, it should strike us as extremely worrisome that he (1) sided with two doctors arguing against a ban on discriminating against transgender patients and (2) prior to becoming a judge, called homosexuality “disordered” and said being transgender is a “delusion.”
The Department of Justice has warned that, should Kacsmaryk grant the Alliance’s request for an injunction, it would cause “significant harm” to both “patients and doctors who depend on mifepristone.” As Rolling Stone notes, “in a worst-case scenario,” in which the judge orders the FDA to drop its approval of mifepristone, the DOJ could seek a stay from the Fifth Circuit Court of Appeals—which, thanks to Trump‘s handiwork, has been dubbed the “most extreme” court in the United States. If things don’t work out for the government there, they would then have the chance to appeal to the Supreme Court. Which, given its recent rulings, is hardly consoling.
Bess Levin
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