Why a Trump-appointed judge’s abortion pill 'power grab' is 'so troubling': law professor

19 April 2023

Abortion rights activists in the legal world have been angrily railing against federal Judge Matthew J. Kacsmaryk, the Donald Trump appointee and far-right Christian fundamentalist from Amarillo, Texas who, on April 7, ruled against the U.S. Food and Drug Administration's (FDA) 2000 approval of the abortion pill mifepristone.

On Friday, April 14 — a week later — U.S. Supreme Court Justice Samuel Alito stayed Kacsmaryk's decision but didn't strike it down permanently. What the High Court will ultimately have to say about Kacsmaryk and the availability of mifepristone remains to be seen.

In an article published by the conservative website The Bulwark on April 19, Never Trumper Kimberly Wehle — a University of Baltimore law professor and former federal prosecutor — lays out some reasons why Kacsmaryk's ruling is "so troubling" and why a lot is riding on what the High Court rules about mifepristone.

"The stakes are high," Wehle explains. "Over half of all abortions in 2020 were medically induced, and since last year's decision in Dobbs v. Jackson Women's Health Organization, 13 states have enacted or reinstated complete abortion bans — even in cases of rape, incest, or life-threatening conditions for the mother. An analysis by the Association of American Medical Colleges found that new doctors applying for residency programs are avoiding those states, as well as several others that have enacted early-gestation abortion bans."

The law professor continues, "Not only do women residing in those states lack abortion access, therefore, but Dobbs is also now exacerbating existing problems with health care, particularly for low-income women and their children. Now comes the mess involving mifepristone, which the FDA approved in 2000 and for which the agency began permitting access by mail in 2021. Setting aside the substance of what it would mean if mifepristone — prescribed each year to hundreds of thousands of Americans — were no longer accessible, the case raises disturbing questions as a matter of law."

Wehle notes that the "legal basis" for Kacsmaryk's April 7 ruling "has nothing to do with the underlying rationale in Dobbs" — the 2022 decision that found the U.S. Supreme Court overturning Roe v. Wade after 49 years and ending abortion as a federal right.

"That case held that there is no constitutional right to abortion; Kacsmaryk’s 67-page ruling strikes at the heart of the FDA's power to regulate drugs," Wehle observes. "Over 100 scientific studies covering over 124,000 pregnancy terminations across 26 countries over 30 years have confirmed the safety and effectiveness of mifepristone. Over 99 percent of those who took the medication experienced no serious side effects, which is why Kacsmaryk's decision is so troubling."

Wehle points out that the FDA is "supposed to get deference as a matter of law," which it obviously didn't get from Kacsmaryk on April 7.

"Kacsmaryk's abject power-grab in one of the nation's most divisive culture wars is an insult to the rule of law and the legitimacy of the judicial branch of the federal government," Wehle argues. "This much should starkly be evident to at least five members of the right-leaning Court…. The justices will have to decide whether to extend Alito's decision to stay Kacsmaryk’s maneuver until the Supreme Court can thoroughly consider the issue — or instead, do what it did pre-Dobbs by enabling Texas' six-week abortion ban to take effect while it considered what to do with Roe v. Wade."

Read Kimberly Wehle's full article for The Bulwark at this link.

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