Abcarian: Abortion pill's fate in conservative judge's hands

Feb. 8, 2023 3 AM PT

Could a federal judge really declare that an abortion drug used safely by millions of American women over more than two decades did not receive proper vetting and force it off the market?

Normally, this would be an absurd scenario. When it comes to reproductive health, however, we have entered the realm of the absurd.

Last year, after all, the U.S. Supreme Court revoked a half-century-old federal right to abortion when it overturned Roe vs. Wade, tossing the issue back to the states. About half of them have banned, or are expected to ban, the procedure. But tossing Roe did not satisfy the Christian right, which is on a mission to thwart women’s agency.

Opinion Columnist

Robin Abcarian

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Asking federal courts to step in now is a transparent attempt to supersede the power of blue states like California, whose citizens voted recently to enshrine the right to abortion in the state Constitution.

In November, the right-wing Christian legal group Alliance Defending Freedom filed a federal lawsuit on behalf of individuals and groups opposed to abortion. The ADF, founded to protect “God’s design for marriage and family,” is known for its legal assaults on LGBTQ rights. It alleges that medication abortion, which accounts for more than 50% of abortions in the U.S., is dangerous and should never have been approved by the Food and Drug Administration.

Nearly 23 years ago, the FDA approved the use of mifepristone, which ends pregnancy by interfering with certain hormones. (The pill is usually taken in conjunction with misoprostol, which stimulates uterine contractions.) The agency invoked a clause in the Code of Federal Regulations that allows for accelerated approval of new drugs for “serious or life-threatening illness.”

But pregnancy, the ADF lawsuit argues, is not an illness; therefore, the clause should never have been invoked. The government, however, has extensively reviewed and defended the approval, saying that pregnancy is a “serious condition” and that mifepristone, taken orally, allows patients to avoid a surgical procedure.

So what else does the Alliance Defending Freedom find objectionable about medication abortion, which is not just safe but inexpensive, and doesn’t require being in a clinic or doctor’s office, unlike surgical abortion?

The lawsuit alleges there is “substantial evidence” that the drugs are harmful to women and girls and that the FDA ignored “the potential impacts of the hormone-blocking regimen on the development of adolescent girls.”

But medication abortion is safe. Very few patients experience any adverse reactions to the drugs used to induce abortion, and serious complications are rare. And does anyone really want to argue with a straight face that mifepristone has a greater impact on the development of adolescent girls than forced childbirth and premature, unwanted motherhood?

Since the FDA approved the drug in 2000, the government has infuriated abortion opponents by loosening restrictions on who can prescribe it and how it can be obtained.

Today, it can be taken by people who are up to 10 weeks pregnant, without an in-person visit, and can be delivered through the mail. In the current political atmosphere, mail delivery of abortion pills is a giant step forward for women who want to end their pregnancies in privacy, and a terrible blow to those who want to throw up as many barriers to abortion as possible.

Abortion rights supporters are far more worried about the ADF lawsuit than they normally would be over such a far-fetched argument. But the case is being decided by a federal judge who, in his brief time on the bench, has shown that he is willing to disregard precedent and has issued rulings that essentially turn back the clock on the progress of women and LGBTQ people.

U.S. District Judge Matthew Kacsmaryk, who was working for the conservative Christian legal organization First Liberty Institute when former President Trump nominated him to the federal bench in 2017, has ruled that teenagers need parental consent to obtain birth control. He has said gay people are “disordered.” He once likened the sexual revolution to the French Revolution, writing that both sought “to destroy rather than restore.” He bemoaned that “marriage, sexuality, gender identity and even the unborn child must yield to the erotic desires of liberated adults.”

After he upheld the constitutionally questionable Trump-era “Remain in Mexico” policy, he was overruled by the U.S. Supreme Court, which said his order was tantamount to “unwarranted judicial interference in the conduct of foreign policy.” (The Supreme Court sent the case back to Kacsmaryk, whereupon the policy went back into effect until further legal wrangling is concluded.)

It’s no accident that so many culture-war cases are landing in his Amarillo, Texas, courtroom.

“Any conservative interest group can find a federal policy they do not like, file a legal complaint in the Amarillo federal courthouse challenging that policy, and nearly guarantee that their case will be heard by Kacsmaryk,” wrote Vox’s Ian Millhiser. The judge’s rulings, Millhiser said, “show the havoc one rogue federal judge can create, especially in today’s judiciary.”

Abortion rights advocates are worried that if Kacsmaryk rules that the FDA erred in approving medication abortions, the Supreme Court may be willing to uphold the decision.

“Why would this [Supreme Court] balk at another lawless attempt to end abortion?” Dahlia Lithwick and Mark Joseph Stern wrote in Slate. “It has all but invited this type of risky, meritless intervention by blessing the last one.”

I used to think conservative Christians like Pat Buchanan were being ridiculous when they referred to federal judges as “dictators in black robes.” Now, though? I’m not so sure.

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