How 'the most lawless jurist in the country' could ban medical abortions 'in all 50 states': journalists

07 February 2023

A Texas federal judge could soon ban medical abortions in all 50 states — and the Supreme Court might let him, Slate reports.

Slate reporters Dalia Lithwick and Mark Joseph Stern explain how conservative Judge Matthew Kacsmaryk, who was appointed to the bench by former President Donald Trump, could get away with outlawing mifepristone, "the first drug taken in the two-drug medication abortion protocol approved by the FDA (Food and Drug Administration)."

Since the overturning of Roe v. Wade last June, Lithwick and Stern write that instead of "undergoing a procedure at a clinic," many patients use pills to "terminate their pregnancies," considering "medication abortions are 18 times safer than childbirth, very reliable, and easy to access."

Anti-abortion abortion filed a lawsuit with the help of the conservative group Alliance Defending Freedom, with the intent to get the "case" in the hands of perhaps "the most lawless jurist in the country" — Kacsmaryk.

Lithwick and Stern write:

In less than three years, Kacsmaryk has seized control over border policy, repeatedly defied the Supreme Court’s decision protecting LGBTQ employees, and restricted minors’ access to birth control

The journalists point out three massive flaws in the case:

First, none of the plaintiffs "have a remotely plausible claim to standing," or "ability to sue in federal court." And in order to do so, they would need to prove that the FDA’s approval of mifepristone "injures them personally."

Second, the "substantive arguments are ridiculous," Lithwick and Stern write.

The plaintiffs assert that the FDA approved mifepristone, 23 years ago, while "ignoring potential adverse reactions" — in other words — "disputing the conclusions of the agency’s scientists."

Lastly, according to Lithwick and Stern, a federal judge has never banned a drug "by wholly revoking FDA approval." If mifepristone is banned in every state, doctors will no longer be able to prescribe the medication. The journalists argue that, since "a majority of patients use abortion pills," this would lead to chaos for healthcare providers --- "creating monthslong waitlists for abortion procedures even in deep-blue states."

Even with these three glaring flaws, "the actual, enduring problem," Lithwick and Stern write is that the lawsuit "stands a significant chance at succeeding."

They write:

The very weakness of this litigation — the lack of real standing, the blunderbuss attack on federal agencies, the extraordinary scope of the relief sought — are the seeds that have been planted by this newly constituted Supreme Court supermajority coming to fruition. The conservative justices have already brushed away standing requirements in order to weaken civil rights laws; severely weakened the EPA and the CDC; and let rogue judges seize power from the Biden administration.

Lithwick and Stern assert that perhaps the overturning of Roe v. Wade "was not the terminal point" in the attack on women' reproductive rights, but, instead, "barely even the start."

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