Trump Judge in Texas Outlaws the Abortion Pill Nationwide
A federal district court judge in Texas has issued an injunction suspending distribution of mifepristone — a critical component in the two-step abortion pill regimen — nationwide. It’s hard to overstate the magnitude of the order, which could make the drug used in most abortions in America unavailable to women throughout the country, even in states where abortion is legal.
One of the most glaring flaws in the argument that anti-abortion advocates advanced in the case revolved around timing: There is a six-year statute of limitations to challenge FDA authorization and Mifepristone has been on the market for more than 22 years. In his 67-page opinion, Judge Matthew Kacsmaryk waves the issue away, writing that the FDA “stonewalled judicial review — until now.”
More than 3.7 million pregnant people have used mifepristone, and its companion drug, Misoprostol, to terminate unwanted pregnancies since the FDA approved the two-step abortion pill in 2000. More than half of documented abortions in America last year were medication abortions.
Consistent with his earlier efforts to shield the ruling from public scrutiny, Kacsmaryk issued the opinion on the Friday night of a holiday weekend. The last hearing in the case, which took place last month, was scheduled in secret in a deliberate effort to evade attention. “I think less advertisement of this hearing is better,” Kacsmaryk told lawyers in the case, during a call in which he informed them the hearing would be kept off the public docket as long as possible.
In response, Washington District Court Judge Thomas O. Rice issued a partial, preliminary injunction on Friday night prohibiting the FDA from immediately pulling the drug off the market and “altering the status quo and rights as it relates to the availability of Mifepristone.” The Supreme Court will likely intervene in order to resolve the dispute between the two rulings.
Kacsmaryk is a former religious liberty lawyer who worked at the far-right First LIberty Institute before Trump installed him on the federal bench in 2019. It’s not the first controversial decision he has issued, but this one will virtually guarantee his place in infamy.
At least two clinic networks have announced they will continue to provide abortions using mifepristone. Trust Women, which operates clinics in Kansas and Oklahoma, and Whole Woman’s Health, which operates facilities in Illinois, Maryland, Minnesota, New Mexico and Virginia, have both announced they will await direction from the FDA. Hey Jane, which provides telemedicine services to patients in California, Colorado, Connecticut, Illinois, New Jersey, New Mexico, New York, and Washington, has likewise said it will continue to provide mifepristone and misoprostol abortions “for as long as we have access” to mifepristone.
On Friday, the Biden administration said it was reviewing the decisions.
The Department of Justice is expected to seek a stay from the Fifth Circuit — widely regarded as the most conservative court in the country. (Twelve of the 17 Fifth Circuit judges are Republican appointees; half were appointed by Trump himself.) If lawyers for the Biden administration can’t find relief in the Fifth Circuit, they can appeal to the Supreme Court. It’s unclear how long that will take and if Kacsmaryk’s injunction will be allowed to remain in place in the meantime.
Sen. Ron Wyden (D-Ore.), an early champion of the abortion pill, has called on the FDA and President Biden to ignore Kacsmaryk’s order. A 2018 article in the Harvard Law Review examining the issue of federal disobedience found it is rare for a federal agency to defy a court order, but not unprecedented. The courts themselves have relatively few options to force an agency, like the FDA, to comply with an order. Kacsmaryk could issue contempt sanctions in the form of fines, or threaten to throw the head of the agency — in this case, Commissioner Robert Califf — in jail.
Wyden spoke critically of the fact that a single federal judge could manipulate national policy in this way. “This is all about hot-wiring the system in order to produce an anti-abortion ruling — which is what his whole career has been about,” Wyden said of Kacsmaryk. “If he wanted to be a legislator, he should have run for office.” It’s a relatively recent phenomenon, with increasingly partisan judges issuing national injunctions more frequently in the last decade than ever before in American history. Until 1976, national injunctions could only be issued by courts composed of at least three judges. But that’s no longer the case, and since Kacsmaryk is the only federal judge in the Amarillo division of the Northern District of Texas, all any ideologically-motivated organization needs to do to stop a federal law they don’t like from being enforced is file their case in Amarillo.
The ideologically motivated organization behind this lawsuit is the Alliance for Hippocratic Medicine, incorporated in Amarillo shortly before this suit was filed. They are represented by the Conservative litigation shop, the Alliance Defending Freedom; Sen. Josh Hawley’s (R-Mo.) wife, Erin Hawley, the lead lawyer on the case.
In a statement, ADF Senior Counsel Erik Baptist called the opinion “a significant victory for the doctors and medical associations we represent.”
Kacsmaryk’s order is the biggest victory for anti-abortion advocates since the overturning of Roe v. Wade and the latest shot fired in the broader conservative campaign against reproductive rights — a campaign that continues despite polls showing a record number of Americans are dissatisfied with abortion laws in the U.S. It’s a campaign in which Kacsmaryk himself has emerged as a central figure: In December, he issued a ruling prohibiting teens in Texas from obtaining birth control without their parents permission.