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Texas ruling could not only harm women, but also the legitimacy of the judicial branch

Boxes of the drug mifepristone line a shelf at the West Alabama Women’s Center in Tuscaloosa, Ala., on March 16, 2022. Abortion opponents who helped challenge Roe v. Wade filed a lawsuit Friday, Nov. 18, 2022 that takes aim at medication abortions, asking a federal judge in Texas to undo decades-old approval of the preferred method of ending pregnancy in the U.S. (AP Photo/Allen G. Breed, File)

A single federal judge, with apparently no substantive background in science or medicine, appears poised to overrule decades of safety determinations made by the Food and Drug Administration (FDA) and ban a medicine from use nationwide. Such a decision would be unprecedented, significantly worsening the legitimacy crisis facing the judiciary by signaling to communities across the country that — in America’s courts, at least — drug safety comes second to a judge’s personal politics. 

Leading medical groups, including the American Medical Association, the American Academy of Family Physicians, as well as American College of Obstetricians and Gynecologists, all strongly disagree that the drug should be banned and affirm its safety. FDA experts have written to the court, explaining a judge should not even be able to ban a medicine outright because of the FDA’s statutory powers that establish both its independence and guardrails for patient access.    

For the moment, however, these expert opinions are secondary to the question of how far the judge in the case, U.S. District Judge Matthew Kacsmaryk appointed by former President Trump, is willing to go to put politics before drug safety. 

The drug in question is mifepristone. Most commonly used for early abortion care, it has been approved for use in the U.S. for over two decades. (The drug is also used in other areas of medicine, such as for miscarriages as well as in treatments for diabetes and Cushing’s syndrome.)

Due to how federal courts are allowed to operate, the plaintiffs in the suit — a collection of far-right activists that formed a new entity for this exact purpose — were essentially able to select Kacsmaryk to hear their case because of where they filed their lawsuit. And they had a clear reason: Kacsmaryk has a long history of personal and professional opposition to abortion

As a result, most court observers expect Kacsmaryk’s ruling to ban the medication despite having no apparent strong scientific or legal basis for doing so. This assumption itself is a damning indictment of how widely understood the politicization of the judiciary has become.

It should be noted that, if Kacsmaryk does act as expected, there is the possibility that he would try to dress up the decision to appear limited to mifepristone or abortion. But any attempt to do so should be examined with skepticism — mifepristone is far from the only politically fraught medicine on the market. Take childhood vaccines, an area of medicine where misinformation flourishes even among well-meaning parents. 

The appointment of Kacsmaryk was part of Senate Republicans’ work, hastened by then-President Trump’s nominees, to remold the federal judiciary into a conservative juggernaut. Knowing that Republican control of Congress and the White House is often fleeting, Senate Republican leader Sen. Mitch McConnell (R-Ky.) never hid that appointing judges was his top priority for the caucus he leads. He said in 2018, “I think lifetime appointments … are the way you have the longest-lasting impact on the country.” 

Regardless of the outcome of this one case, the damage this commandeering of the judiciary has brought is clear. Public trust in the Supreme Court has hit historic lows. Adding to this, even some who have been on the bench for decades seem to relish the court’s rejection of facts and reason for ideology. 

Take Supreme Court Justice Samuel Alito, who, in a 2020 speech, forecast the current politicized state of medicine by denouncing policymaking based on “scientific expertise.” 

The impacts, of course, of this type of judicial activism are not theoretical. Alito’s own opinion in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade — which did not even require states to allow for an exception to save a woman’s very life —is evidence that this is the reality.  

In Texas — the same state that Kacsmaryk will issue an opinion on mifepristone from — five women recently sued the state over its severe ban. One of them, Amanda Zurawski, was experiencing pregnancy loss but was denied treatment until she became septic. Only once her health deteriorated enough that her life was at risk did physicians believe they were legally allowed to intervene.

Judges, not doctors, caused Amanda’s suffering. If further precedent is set where, despite a long record of safety that no reasonable doctor could disagree with, the availability of care can be dictated by a judge — no treatment, no person, should be considered safe from politically motivated judicial interference.

Maggie Jo Buchanan is the senior director of the Women’s Initiative and senior legal fellow for the Center for American Progress. 

This piece has been updated.

Tags Abortion abortion pill Mifepristone Mitch McConnell Samuel Alito Supreme Court Texas abortion ban

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