President Joe Biden should 'forcefully resist' TX judge’s 'medically unsound' abortion pill ruling: columnist

09 April 2023

Texas GOP Judge Matthew Kacsmaryk's recent decision to halt the Food and Drug Administration's (FDA) approval of the popular abortion pill, mifepristone — a drug "safer than "most other" common drugs including Viagra and Tylenol" — is receiving a heap of backlash from Democratic lawmakers and abortion rights advocates.

Kate Shaw, a contributing writer at The New York Times argues in a recent op-ed the judge's opinion is not only "bad law," but is "tonally shocking and medically unsound."

She offers a number of reasons why the ruling is "wildly atypical," including the fact many "commentators from across the political spectrum have noted, the plaintiffs lack standing, a core requirement of any lawsuit in federal court."

Additionally, Shaw writes:

The approval of mifepristone most likely violated federal standards for drug approval — is based on several reasons that are scientifically baseless and infused with hostility to abortion, including that the F.D.A. failed to consider 'the intense psychological trauma and post-traumatic stress women often experience from chemical abortion.'

Because of the ruling's significant lack of standing, Shaw admonishes the administration to "forcefully resisting this opinion" by "using every tool available to highlight the lawlessness of what the judge has done and to limit any damage that may occur."

According to The Hill, the president has "vowed his administration would oppose the ruling, but he added that the only way to ensure abortion rights are protected is to elect members of Congress who support a federal law to reimplement the ruling under Roe."

However, Shaw urges the Democratic administration to take "the position, as some law professors have argued, that the court cannot require the F.D.A. to enforce its decision and that under long-settled principles of administrative law, the agency retains enforcement discretion. Under this reading, mifepristone manufacturers and distributors could continue to produce and sell their products, potentially under F.D.A. guidance explaining the agency’s planned approach to exercise its enforcement discretion."

Shaw writes:

Depriving women of access to mifepristone, as this decision eventually could do, would have extremely damaging consequences. If they are not able to prescribe mifepristone, some doctors will stop providing medication abortion entirely, leaving surgical abortion as the only option for many individuals seeking abortion care — something that is inaccessible to many Americans, especially those in states with strict anti-abortion laws.

She emphasizes the massive "stakes make clear why the Biden administration must respond forcefully. The Justice Department voiced its disagreement with the opinion and said it will appeal. The administration is correct to appeal, and if the Fifth Circuit does not rule swiftly, the Justice Department should ask the Supreme Court to intervene," adding "the case is expected to reach the high court.)

Kate Shaw's full op-ed is available at this link. The Hill's report is here.

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