United States District Court Judge Matthew Kacsmaryk outlawed distribution of the abortion drug mifepristone in a 67-page ruling Friday evening. The order revokes the Food and Drug Administration’s approval of one of the most commonly used methods to terminate an unwanted pregnancy, and his order could end access to the drug nationwide.
Kacsmaryk, who was a noted anti-abortion lawyer before Donald Trump elevated him to the federal bench, argued that the FDA didn’t properly consider the safety of mifepristone when it approved the drug back in 2000.
To get to this ruling, Kacsmaryk didn’t just have to agree with the fake science cooked up by forced-birth activists against the drug; he also had to invent a bunch of legal gobbledygook to find a reason for the activists to challenge the FDA process in the first place. Normally, the only people who have standing to sue the government are those who are harmed by a government action. But the case against mifepristone was brought by a group called “Alliance for Hippocratic Medicine,” formed three months after the Supreme Court revoked the right to choose in Dobbs v. Jackson Women’s Health Organization. The Intercept found that this group is just a front for a bunch of Christian-aligned forced-birth “medical” organizations that regularly challenge abortion rights. Among its members: the Catholic Medical Association, the Christian Medical & Dental Associations, the American Association of Pro-Life Obstetricians and Gynecologists, the Coptic Medical Association of North America, and the American College of Pediatricians.
To grant this fake-holy conglomeration standing, Kacsmaryk found that it could sue under a couple of theories. He said that “adverse events from chemical abortion drugs can overwhelm the medical system and place ‘enormous pressure and stress’ on doctors during emergencies and complications.” He further found that the association has a better claim to sue the government than women have who actually have had medical abortions, because those women might have been too “traumatized” to bring the lawsuit themselves. Kacsmaryk wrote:
Women who have aborted a child—especially through chemical abortion drugs that necessitate the woman seeing her aborted child once it passes—often experience shame, regret, anxiety, depression, drug abuse, and suicidal thoughts because of the abortion.… Subsequently, in addition to the typical privacy concerns present in third-party standing in abortion cases, adverse abortion experiences that are often deeply traumatizing pose a hindrance to a woman’s ability to bring suit. In short, Plaintiffs—rather than their patients—are most likely the “least awkward challenger[s]” to Defendants’ actions.
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With that level of sexism, paternalism, and pure stupidity, you can see why Kacsmaryk was handpicked by the forced-birthers to hear this case. And you can see where the ruling is going. Kacsmaryk ruled that the FDA failed to consider the “psychological” effects of mifepristone, and that it didn’t have enough information to approve the drug 23 years ago. Notably, Kacsmaryk did not mention the psychological effects of being forced by the government to bring a pregnancy to term against your will because a federal judge thinks you’d be too ashamed to exercise your bodily autonomy if you were allowed to. I can’t imagine why that didn’t occur to him.
Kacsmaryk’s legal argument is bunk. There is no legal precedent for a federal judge—who is not a doctor or a scientist or an expert in anything other than his own bile—to second-guess an FDA approval of a medicine that is two decades old. Moreover, all credible data show that mifepristone is safe. Indeed, mifepristone has been shown to be safer than Viagra, a drug that can be used by men to cause unwanted pregnancies. And mifepristone is widely used not just in the United States but across the world—again, with every data point showing that it is both safe and effective.
But facts, data, and logic are not as important to conservative judges as controlling women’s bodies. Despite conservative lies about their desire to return the abortion question to the states, Kacsmaryk’s ruling could apply to all pregnant people, everywhere.
I say “could” because Kacsmaryk prevented his own ruling from taking effect for seven days to give time for the Department of Justice to appeal on behalf of the FDA. The Supreme Court, if it decides to hear an emergency appeal and skip the review of the US Court of Appeals for the Fifth Circuit, could decide to stay Kacsmaryk’s ruling until there is a full hearing before the court.
There’s another, perhaps even more likely, way the Supreme Court could get involved within the next week: On Friday evening, there was another abortion pill ruling from a federal court judge in the state of Washington. In that case, District Judge Thomas Rice prohibited the FDA from pulling mifepristone from the market, a ruling that directly conflicts with Kacsmaryk’s ruling. The Supreme Court almost has to step in and, for at least the immediate future, tell us which ruling will apply. Normally, one would expect the Supreme Court to side with Rice’s ruling over Kacsmaryk’s, because Rice’s ruling is the one that preserves the status quo. But it’s difficult to predict what the six conservative justices who have already thrown out Roe v. Wade and the 50 years of settled law that goes with it will do with these cases.
As of this writing, I simply do not know if it is legal in the United States for a pregnant person to receive a medical prescription to terminate their pregnancy. And that is part of the point. Confusion is the point. Fear is the point. Letting people know that their bodies are subject to the whims of random male judges and shadowy religious organizations is the point.
This is not Law we’re dealing with. This is Inquisition. This is theocratic forces using the apparatus of the state to force their religious views on everybody else.
It’s not lost on me that Kacsmaryk issued his ruling on Good Friday. This is the day each year on which Christians honor the story of a person who was put to death at the hands of the state because he resisted authoritarian attempts to control his beliefs. Kacsmaryk probably thinks he’s messaging to his flock the holy nature of his cause, but what he’s really doing is throwing his lot in with the Roman government. Kacsmaryk wants to use the armaments of the state to persecute people who don’t believe what he believes. Pontius Pilate would be proud of him.
