Tuesday Reads: The GOP War on Abortion Rights

Ruth Marcus at The Washington Post: The worst federal judge in America now has a name.

Congratulations are in order for Judge Matthew Kacsmaryk. The competition is fierce and will remain so, but for now he holds the title: worst federal judge in America.

Not simply for the poor quality of his judicial reasoning, although more, much more, on this in a bit. What really distinguishes Kacsmaryk is the loaded content of his rhetoric — not the language of a sober-minded, impartial jurist but of a zealot, committed more to promoting a cause than applying the law.

Kacsmaryk is the Texas-based judge handpicked by antiabortion advocates — he is the sole jurist who sits in the Amarillo division of the Northern District of Texas — to hear their challenge to the legality of abortion medication.

And so he did, ruling exactly as expected. In an opinion released Friday, Kacsmaryk invalidated the Food and Drug Administration’s 23-year-old approval of the abortion drug mifepristone and, for good measure, found that abortion medications cannot be sent by mail or other delivery service under the terms of an 1873 anti-vice law.

Even in states where abortion remains legal. Even though study after study has shown the drug to be safe and effective — far safer, for instance, than over-the-counter Tylenol. Even though — or perhaps precisely because — more than half of abortions in the United States today are performed with abortion medication.

My fury here is not because I fear that Kacsmaryk’s ruling will stand. I don’t think it will, not even with this Supreme Court. Indeed, another federal district judge — just hours after Kacsmaryk’s Good Friday ruling — issued a competing order, instructing the FDA to maintain the existing rules making mifepristone available. Even Kacsmaryk put his ruling on hold for a week; the Justice Department has already filed a notice of appeal; and the dispute is hurtling its way to the Supreme Court. (Nice work getting yourselves out of the business of deciding abortion cases, your honors.)

No, my beef is with ideologues in robes. That Kacsmaryk fits the description is no surprise. Before being nominated to the federal bench by President Donald Trump in 2017, Kacsmaryk served as deputy general counsel at the conservative First Liberty Institute. He argued against same-sex marriage, civil rights protections for gay and transgender individuals, the contraceptive mandate and, of course, Roe v. Wade.

At his confirmation hearings, Kacsmaryk testified that federal judges are bound “to read the law as it is written and not read into it any policy preference that they might have had before they were judges.”

Well that was a blatant lie. Read the whole article at the WaPo.

Adam Liptak at The New York Times: Abortion Pill Ruling May Face Headwinds at the Supreme Court.

The conservative legal movement has long had two key goals: to limit access to abortion and to restrict the authority of administrative agencies.

The decision last week by a federal judge in Texas invalidating the Food and Drug Administration’s approval 23 years ago of the abortion drug mifepristone checked both of those boxes. The ruling, if it stands, would not only thwart access to the pills, used in more than half of pregnancy terminations, but also undermine the F.D.A.’s authority to approve and regulate other drugs.

At first blush, all of that might seem to make the decision’s chances of surviving review by a Supreme Court dominated by conservative justices quite promising.

But legal scholars said on Monday that the poor quality, breathtaking sweep and unknown collateral consequences of the Texas decision might cause at least some of the Supreme Court’s conservative justices to wait for a case that would allow them to take more measured steps.

“If you’re a justice looking for a case in which to undermine the administrative state, this is not a particularly elegant one,” said Mary Ziegler, a law professor and historian at the University of California, Davis. “Everything about this case makes it an imperfect vehicle, except for the fact that it’s about abortion and the administrative state. This is boundary testing.”

Jonathan H. Adler, a law professor at Case Western Reserve University, said the new case, should it reach the Supreme Court, might meet a reception similar to that of the latest challenge to the Affordable Care Act. In 2021, by a vote of 7 to 2, the court said that the 18 Republican-led states and two individuals who brought the case had not suffered the sort of direct injury that gave them standing to sue.

Despite the conservative majority’s misgivings about the health care law, Professor Adler said, “when push came to shove and they were presented with a fundamentally deficient legal theory, only two justices were willing to give that legal theory the time of day.”

History may repeat itself in the Texas case, he said. “I view some of the administrative law aspects of this case to be similar,” he said, noting that there were significant threshold issues involving the plaintiffs’ standing to sue, whether they had exhausted other avenues for relief and whether they had taken too long to bring an action.

Read more at the NYT link.

Drug companies are not happy with Kacsmaryk’s opinion. The New York Times: Drug Company Leaders Condemn Ruling Invalidating F.D.A.’s Approval of Abortion Pill.

The pharmaceutical industry plunged into a legal showdown over the abortion pill mifepristone on Monday, issuing a scorching condemnation of a ruling by a federal judge that invalidated the Food and Drug Administration’s approval of the drug and calling for the decision to be reversed.

The statement was signed by more than 400 leaders of some of the drug and biotech industry’s most prominent investment firms and companies, none of which make mifepristone, the first pill in the two-drug medication abortion regimen. It shows that the reach of this case stretches far beyond abortion. Unlike Roe v. Wade and other past landmark abortion lawsuits, this one could challenge the foundation of the regulatory system for all medicines in the United States.

“If courts can overturn drug approvals without regard for science or evidence, or for the complexity required to fully vet the safety and efficacy of new drugs, any medicine is at risk for the same outcome as mifepristone,” said the statement.

What the DOJ is doing:

Also on Monday, the Justice Department filed a motion asking the U.S. Court of Appeals for the Fifth Circuit to stay the ruling by Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas until the department’s appeal of the case could be heard. Judge Kacsmaryk, a Trump appointee who has written critically of Roe v. Wade, had issued only a seven-day stay of his ruling to allow the government a chance to appeal.

“If allowed to take effect, the court’s order would thwart F.D.A.’s scientific judgment and severely harm women, particularly those for whom mifepristone is a medical or practical necessity,” said the Justice Department motion, which noted that mifepristone was also used in treating miscarriages.

It added: “This harm would be felt throughout the country, given that mifepristone has lawful uses in every state. The order would undermine health care systems and the reliance interests of businesses and medical providers.”

The appeals court gave the plaintiffs, a coalition of groups and doctors who oppose abortion, until midnight Tuesday to file a response.

There’s much more analysis at the NYT link.

Hannah Getahun at Insider: A Texas judge tried to school the FDA on the abortion pill. Only problem? He used debunked research and a study based on an anonymous blog to do it.

In an unprecedented late Friday night ruling, a Texas federal judge sided with conservative, anti-abortion activists and sought to strip key abortion drug mifepristone of its FDA approval.

The 67-page document, written by right-wing Judge Matthew Kacsmaryk, cited Wikipedia and is full of inaccuracies and falsehoods about the health effects of medical abortion, experts told Insider on Friday.

Kacsmaryk in the ruling cited multiple studies to back up claims that have been widely scrutinized or do not hold up to scientific consensus.

“When you’re issuing a ruling that’s going to impact people nationally, one would hope that that ruling would be evidence-based and that it would look at the body of evidence instead of cherry-picking studies that are really not in line with the scientific consensus on the topic,” M. Antonia Biggs, Ph.D. and social psychologist at ANSIRH previously told Insider. 

For example, one study, with ties to anti-abortion nonprofit the Charlotte Lozier Institute, relies on the anonymous experiences of users on one particular website. The study uses 98 blog posts made over the course of 10 years. The authors note that the small sample group is one of the study’s limitations.

In comparison to the study, in 2020, 620,327 legally induced abortions were reported to CDC.

However, despite the limited scope of the study, the conservative Christian judge writes that “eighty-three percent of women report that chemical abortion ‘changed’ them — and seventy-seven percent of those women reported a negative change” — citing the study of 98 anonymous blog posts.

In another example, the judge cites an analysis that suggests a link between negative mental health outcomes and abortion written by abortion researcher Priscilla Coleman whose study has been denounced for years by abortion researchers and whose other work has previously been retracted by leading journals.

Julia Steinberg, an expert on mental health and abortion, told Reuters in 2012 that most women in the study who experienced mental health issues after having an abortion had also experienced them before the abortion. The Guttmacher Institute also debunked the study in a letter.

Clearly, Kacsmaryk is woefully unqualified to be a federal judge.

More on Kacsmaryk’s ideological bias from NBC News: Judge’s abortion pill decision embraces extreme language and ideology of anti-abortion movement, experts say.

In interviews, several legal and medical experts said Kacsmaryk’s decision was unprecedented and clearly ideological. His language and reasoning, they said, closely mirrored arguments and concepts put forward by the anti-abortion movement — at the expense of scientific consensus in some instances.

The experts pointed to several key examples of the extreme nature of Kacsmaryk’s 67-page ruling, including his use of politicized terminology and apparent endorsement of the contentious idea of “fetal personhood.” Here are the parts of the ruling experts found most striking….

In his ruling Friday, Kacsmaryk used various terms closely associated with the anti-abortion movement, according to the experts who were interviewed. Notably, Kacsmaryk referred to the two-pill regimen that is the most common way to terminate a pregnancy in the U.S. as “chemical abortion,” rather than “medication abortion.” The plaintiffs in the suit, a group called the Alliance for Hippocratic Medicine, use the same term in their filings and messaging.

“‘Chemical abortion’ is absolutely not a scientific or medical term. It is something that has been utilized and propagated by those who want to ban abortion or restrict abortion,” said Dr. Jenni Villavicencio, an OB-GYN who is the American College of Obstetricians and Gynecologists’ lead for equity transformation.

Villavicencio characterized “chemical abortion” as an “emotive” term meant to inspire fear about the risks of ending a pregnancy.

She also highlighted Kacsmaryk’s references to a fetus as an “unborn human” or an “unborn child.”

Kacsmaryk wrote that mifepristone “blocks the hormone progesterone, halts nutrition, and ultimately starves the unborn human until death.” [….]

Kacsmaryk’s references to an “unborn child” align with other parts of his decision in which he suggests that any potential “side effects” or “significant complications” caused by mifepristone should apply to both the pregnant woman and “to the unborn humans extinguished by mifepristone.”

Such wording, experts said, references the concept of “fetal personhood”: the idea promoted by the anti-abortion movement that a fetus should be recognized as a person with constitutional rights from the moment of conception. Under that theory — which many legal analysts and abortion rights advocates oppose — an abortion would be considered murder.

Finally, This piece from David R. Lurie at Aaron Rupar’s Public Notice outlines the recent history of the federal courts and the consequences of Republicans working to politicize the courts: The federal judiciary’s grave legitimacy crisis. A Texas judge’s absurd abortion pill ruling is the latest sign of how bad it’s gotten.

On Friday, a Trump-appointed judge with a long history of anti-choice activism ordered the FDA to take a medication that is safely used to perform most abortions off the market, based on the thinnest of legal rationales. The same day, Supreme Court Justice Clarence Thomas gaslit the nation by saying he’d seen no need to disclose the hundreds of thousands of dollars’ worth of largess he received from a right-wing billionaire.

These two apparently disparate events are fruit of the same poison tree. They each reflect a fundamental problem with the GOP’s decades’ long effort to remake the nation by packing the federal courts with extremists: A judiciary at odds with, and even contemptuous of, most of the nations’ citizens is not sustainable.

A brief history of SCOTUS’s decline since Bush v. Gore

During what can now fairly be titled the federal courts’ “Trump Era,” Americans’ trust in the judicial branch has plummeted. In the wake of the Supreme Court’s overruling Roe, 58 percent of the nation now disapproves of how the Supreme Court is handling its job, and less than half the country has confidence in the institution. This is hardly a surprise; indeed, what’s surprising is how long it has taken most of the nation’s citizens to realize that the packed Supreme Court has become a partisan tool of the Republican Party, and a direct adversary to the nation’s foundational principles of democracy and civil rights.

Even before Trump and Mitch McConnell packed the Supreme Court with a right-wing supermajority, GOP-appointed justices were pursuing a brazenly anti-democratic project, which only became more audacious as each judicial attack was met with little pushback.

Even before Trump and Mitch McConnell packed the Supreme Court with a right-wing supermajority, GOP-appointed justices were pursuing a brazenly anti-democratic project, which only became more audacious as each judicial attack was met with little pushback.

In addition, the court ruled in 2019 that the US Constitution places no limits on the partisan gerrymandering of legislative districts that, in states like Wisconsin, North Carolina, and Tennessee, has so diluted the votes of many citizens as to make a farce of the democratic process. In addition, it appears several justices are interested in a dubious reading of the Constitution that would prevent governors and state courts from addressing such largely GOP-driven gerrymandering, even when it squarely violates the state constitutions state courts and elected officials are charged with enforcing.

The Roberts court also set out to open political campaigns to brazen corruption by gutting campaign finance laws, including in the 2010 Citizens United case, which voided key limits on dark money in political campaigns, as well as a 2021 decision that protected the identities of many dark money donors from even being disclosed. But these deeply partisan decisions proved only to be a preamble for what was to come.

As the two years since Trump’s failed insurrection against democracy have demonstrated, the vast majority of GOP “leaders” either support, or are unwilling to oppose, the Republican Party’s movement toward outright authoritarianism. And that same tendency is evident in the rulings of Trump Era judges.

In last year’s Dobbs decision, the Trump Era Supreme Court supermajority used a case that was initially about a 15-week abortion ban to overrule Roe entirely. As I observed after a draft of the decision was leaked, it was all but inevitable that the GOP, along with the Court, would be met with a public backlash. But that backlash is only leading to a doubling down upon extremism, including among some right-wing jurists.

It should not be surprising, however, that extremists the GOP has installed in the judiciary — chosen for their ideological fervor, not their political savvy — are determined to use their lifetime judicial appointments to impose right-wing economic, political and social policy agendas on the nation, whether the nation wants them or not.

It’s not at all surprising that the right wing courts are so focused on controlling women’s bodies. I’m feeling discouraged and overwhelmed with rage and fear over what is happening, but it does seem as if a majority of Americans are now pro-choice, and they are voting on these issues. So there’s hope. Please share your thoughts on these articles and feel free to discuss any other issue that is important to you.

Take care, Sky Dancers!