At a hearing that Judge Matthew Kacsmaryk tried to hide, in a state that won’t be affected by his actions because abortion is already banned there, the avowedly anti-abortion judge heard arguments Wednesday in a case that could upend access to medication abortion nationwide. In an Amarillo, Tex., courtroom, attorneys with the Christian right legal group Alliance Defending Freedom (ADF) asked Judge Matthew Kacsmaryk to revoke the FDA’s 23-year-old approval of mifepristone, the first of two drugs used in medication abortion, which makes up more than half of all abortions in the United States.
Outside the court Wednesday, supporters of abortion access rallied with signs that read “Defend Medication Abortion: Bigger Than Roe.”
Kacsmaryk, who said he would rule “as soon as possible,” is widely expected to do the unprecedented. Never before has a court revoked the FDA’s approval of a medication based on “speculative” claims about its dangers, Jenny Ma, staff attorney at the Center for Constitutional Rights, told me. In fact, even the attorney who asked Kacsmaryk to overturn the FDA’s approval of mifepristone was forced to admit during Wednesday’s hearing that he couldn’t point to another example where a court has intervened like this so long after a drug’s approval, according to The Washington Post.
Kacsmaryk had tried to delay publicizing the hearing until late Tuesday, prompting condemnation from media outlets who noted that doing so would have prevented them from attending. “Austin is an eight hour drive from Amarillo,” Texas Tribune journalist Eleanor Klibanoff tweeted. If the hearing had been announced the night before as Kacsmaryk planned, “I would have had to drive through the night (or hope another media outlet did).”
The impact of Kacsmaryk’s ruling could be staggering, depending on how the FDA and abortion providers respond. Legal scholars have called upon the FDA to decline to enforce any ruling against mifepristone. The agency would almost certainly appeal.
“Reminder: Judge Kacsmaryk’s ruling will not have the power to ban MIFE immediately,” Whole Woman’s Health, which operates nine clinics in five states, tweeted Wednesday. “The ball will be in the FDA’s court. No matter what the judge says, Whole Woman’s Health can still offer medication abortion care with MIFE and MISO until we hear from the FDA.”
In states where abortion remains legal, providers have been preparing to switch to a protocol for medication abortion that uses only the second drug, misoprostol, which a recent study found is 88 percent effective on its own (versus 95–99 percent with mifepristone). Other providers have said they will only offer procedural abortions. In addition to being less effective that the two-drug protocol, misoprostol alone—while safe and in common use around the world in countries where abortion is illegal—can cause more painful cramping.
Popular
"swipe left below to view more authors"Swipe →
“To force somebody into only using a protocol that is perhaps more painful or less effective is egregious,” Elisa Wells of Plan C Pills told me. Groups like hers have moved swiftly to get the word out that people who need abortions still have options regardless of what Judge Kacsmaryk rules. Even if mifepristone is pulled from the market, people can order the full mifepristone-misoprostol regimen online from overseas suppliers—although the drugs may take a few weeks to arrive—or they can get the misoprostol-only protocol or an in-clinic abortion in states where it’s legal. For patients—about half of whom were unsure whether mifepristone was legal in their state even before the ruling—the lawsuit presents yet another level of confusion.
Kacsmaryk is notorious for espousing Christian rightist views. A former staff attorney of the First Liberty Institute, a Christian right legal organization, he has railed against everything from homosexuality (which he considers “disordered”) to no-fault divorce laws (which he considers part of an effort by “sexual revolutionaries” to undermine heterosexual marriage). In this post from 2015, he rues the decision to eliminate penalties for adultery. Last year, in a case brought by anti-abortion legal strategist Jonathan Mitchell, Kacsmaryk ruled that a federal program to give teenagers access to birth control violated the rights of parents who oppose contraception on religious grounds. Citing Catholic catechism, Kacsmaryk concluded that “contraception (just like abortion) violates traditional tenets of many faiths.”
Kacsmaryk is the reason the effort to revoke the FDA’s approval of mifepristone was filed in Amarillo, Tex.—even though Texas already has a ban in place on all forms of abortion.
“There’s some irony here in that this case has essentially nothing to do with Texas,” said Elizabeth Sepper, law professor at the University of Texas at Austin. That’s “both because abortion is prohibited virtually across the board in the state of Texas so that this lawsuit stands to have much greater impact in states like Rhode Island or California” and because “essentially none of the plaintiffs live in Texas or do anything in Texas.”
Thanks to Kacsmaryk, the Christian right has found a judicial pipeline in Texas where it thinks it can win favorable rulings that affect abortion access even in protective states like Vermont and California. That makes clear that the effort to end the nationwide right to legal abortion that culminated in the June Supreme Court decision overturning Roe was never about defending religious liberty or returning power to the states, as the Christian right groups pursuing these efforts have claimed. It was always about using the courts to end legal abortion, even in blue states. “We’re seeing the mask drop from some of these groups,” Sepper told me.
This is a Texas story not only because of him but also because of the courts above him. The next in line is the US Court of Appeals for the Fifth Circuit—known as one of the most conservative courts in the country—where six of the 16 active judges were appointed by Trump. After the Fifth Circuit, the last step is the Supreme Court, which overturned Roe v. Wade in June.
The Justice Department, in defending the FDA’s approval of mifepristone, pointed to decades’ worth of studies showing the medication is safe. Data from studies involving well over 30,000 patients that showed serious adverse events in response to mifepristone are rare—with complications like hospitalization and hemorrhage occurring well under 1 percent of the time, the federal government said in court papers. In calling for mifepristone to be pulled from the market, the Alliance for Hippocratic Medicine had used claims about the drug’s purported dangers that are “untimely, unexhausted, and without merit,” the DOJ said.
Yet the organization behind these claims deserves a closer look.
Last February, at a conference hosted by her organization, the American Association of Pro-Life OB/GYNs, Dr. Christina Francis made an exciting announcement. She and her colleagues were making an impassioned pitch for the medical providers attending the conference to train as expert witnesses for impending court cases—and to be ready to push information about the dangers of the rising threat of medication abortion, in particular.
She told the attendees that AAPLOG would be joining together with the American College of Pediatricians—a right-wing, anti-abortion organization, often confused with the American Academy of Pediatrics—and with the Catholic Medical Association and Christian Medical and Dental Association to create a new umbrella group: the Alliance for Hippocratic Medicine. “Once we are official, we’ll be coordinating a lot of these expert witness trainings,” she said.
In one of its earliest press releases, the Alliance declared that “abortion treats no disease process and carries significant potential harm for women.”
That was essentially the argument made in the lawsuit filed by ADF with the Alliance for Hippocratic Medicine as a plaintiff that prompted Wednesday’s hearing: that pregnancy is not a sickness, and therefore, the FDA was wrong to approve mifepristone as a drug to treat it.
As Sofia Resnick reported at States Newsroom, the suit is a veritable who’s who of leading anti-abortion medical providers who have claimed for years, with scant evidence, that mifepristone is dangerous. (Since the FDA approved mifepristone, millions of people have taken the drug and, by the FDA’s count, just 28 have died.) Plaintiffs include Dr. Quentin Van Meter, a leading proponent of gay conversion therapy, and Dr. George Delgado, a devout Catholic who has developed an unproven protocol he claims can “reverse” mifepristone.
To Jenny Ma, with the Center for Reproductive Rights, the arguments and organizations behind this latest lawsuit felt all too familiar. Before Roe fell, the center fended off laws aimed at restricting abortion by requiring everything from hospital admitting privileges for providers to minimum widths for clinic hallways. The arguments about abortion’s purported dangers that were used to justify these laws came from the same cottage industry of experts.
“Those ‘experts’ were developed long ago and showed up in many of our cases,” Ma told me. “There has been a training ground for ‘experts’ on the anti-abortion side to peddle pseudoscience, junk science that is not in line with any major medical association.”
Progressive courtwatchers have been sounding the alarm about Kacsmaryk since Trump first nominated him to a seat on the federal bench. “This is a clear a signal that President Trump intends to make our federal courts the place where civil rights go to die,” Kathy Miller, president of Texas Freedom Network, a watchdog for right-wing policies, declared in 2017.
Two years earlier, while working as an attorney for a Christian right legal organization, Kacsmaryk penned an op-ed railing against “US elitists” and their support for same-sex marriage.
“[The sexual revolution] sought public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults,” Kacsmaryk wrote. “In this way, the Sexual Revolution was more like the French Revolution, seeking to destroy rather than restore.”
Given his beliefs about the “sexual revolution,” it’s perhaps not surprising that Kacsmaryk seemed willing to indulge a second, even more potentially sweeping claim in the lawsuit against mifepristone—that the mailing of abortion drugs is already illegal under the 1873 Comstock Act. That’s the law named for anti-pornography zealot Anthony Comstock who was known for getting activists who circulated information about contraception arrested and for railing against art and books that he saw as indecent.
The Comstock Act has quietly become a center point of efforts to end access to medication abortion. Mark Lee Dickson and Jonathan Mitchell, the team behind the Texas six-week ban SB 8 and its private citizen enforcement mechanism, have worked the Comstock Act into ordinances that have passed in towns and counties in eastern New Mexico—a crucial destination state for Texans who need abortions. Dickson says the ordinances act as a “de facto” ban on abortion by preventing clinics not just from mailing abortion pills but also from receiving any abortion paraphernalia through the mail. “If an abortion facility cannot receive abortion-inducing drugs or any abortion paraphernalia, then how can they perform abortions?” Dickson said. They can’t.
The Biden administration disagrees with Dickson’s interpretation of the law. In December, the Department of Justice said the Comstock Act does not prevent the mailing of abortion drugs when the sender “lacks the intent that the recipient of the drugs will use them unlawfully.” Even if Kacsmaryk declines to revive the Comstock Act, the Supreme Court could have another opportunity to do so. In January, New Mexico Attorney General Raúl Torrez sued the cities and counties in his state that have passed Dickson’s ordinance. If the case makes it before the Supreme Court, Dickson hopes it will result in a ruling that will stop providers in every state from mailing abortion drugs or devices, effectively ending access to legal abortion nationwide.
Dickson told NPR he thought Anthony Comstock would be “pleased” with this latest use of his laws. Speaking with me, Dickson hedged slightly on this endorsement of Comstock—a man who boasted of having secured the convictions of thousands of people under his anti-vice laws and driving 15 of them to suicide.
“To be honest, I don’t know a whole lot about him, but I have looked at the laws, of course,” Dickson said.
For his part, Judge Kacsmaryk seemed to seriously entertain reviving the Comstock Act during Wednesday’s hearing, at one point asking government lawyers if there was “any dispute” that the 1873 law prohibits the mailing of medication abortion, according to The Washington Post. The Justice Department said it disagrees that a modern-day reading of the law would prevent the mailing of the pills, which are legal in many cases and have other uses besides abortion.
These legal battles, are, in a sense, taking place on a different planet from the daily reality, which is that scores of people are ordering pills and self-managing abortions every day. If they live in states where abortion is banned, they’re doing so from overseas suppliers. Two of the numerous suppliers for medication abortion kits have reported sales of about 10,000 each to the United States in the past six months alone, according to Elisa Wells of Plan C Pills.
“There is a virtual firehose of pills coming into the country right now from other countries,” Wells said.
While organizations like Aid Access offer medical support to people taking abortion pills at home, plenty of overseas websites do not. So when people taking the pills get overwhelmed or scared, they often call the Miscarriage and Abortion Hotline. Cofounder Dr. Linda Prine, a longtime reproductive health activist and abortion provider, said volunteers frequently hear from people who are terrified and traumatized because they’ve taken pills later than they might have if they had been legal to access in their home state. (It can take a few weeks for medication abortion drugs ordered from overseas to arrive here.)
“We get calls from people who are passing a recognizable fetus. They’re freaked out. They have not had an opportunity to have explained to them what to expect—they’ve ordered their pills from someplace that sends no directions,” Prine said. “They’re in a state of panic and distress. And nobody should have to go through that.”
The FDA approves medication abortion up to 10 weeks, although the World Health Organization has said it can be used safely in the first 12 weeks. These days, people are calling the hotline after using the pills well beyond the FDA-approved window—alarmed that their fetus has an umbilical cord that may be attached to a placenta that’s still inside their body.
“It’s not really medically dangerous, but it’s psychologically traumatizing,” Prine said.
Depending on what Kacsmaryk rules, those calls and the fear and confusion that are driving them are likely to increase.
Prine, who lives in New York, is eager to offer a domestic channel for abortion pills and medical guidance to people in states where abortion is banned. But first, she needs her legislature to pass a shield law that protects telemedicine providers in the state who provide care to patients in states where it’s illegal. Massachusetts became the first state to pass such a law last summer.
“We are going to provide these medicines” regardless of what Kacsmaryk rules, Prine said. “We are providing them despite the fall of Roe. We’re getting the meds out there, and that’s going to keep happening. We’re going to help people get the care they need as best we can.”
