By virtually suspending the countrywide use of a popular abortion medication by the end of the week, a single conservative judge in Texas has caused abrupt health care and legal pandemonium.
The decision by US District Judge Matthew Kacsmaryk to suspend the Food and Drug Administration’s approval of the drug mifepristone, which has been used safely for more than 20 years, was an extraordinary use of judicial power in the face of scientific evidence, and it is likely to force the Supreme Court to revisit abortion a year after it overturned Roe v. Wade.
His judgement on Friday, which he delayed for a week to allow for appeals, also marked a judicial interference into the health care decisions of millions of American women and, if implemented, could effectively render abortion inaccessible in many states. After filing an appeal, the Biden administration is already preparing to resist the judge’s bold move.
But, the verdict is having significant political repercussions, as well as condemnation from health-care regulators and providers. The situation is complicated because, less than an hour later, a Washington state judge issued a conflicting order forcing the government to keep the medicine available in 18 liberal jurisdictions that had sued to increase access to abortion pills. Politically, the fresh resurrection of abortion politics will create concerns among Republicans that the party’s staunch anti-abortion stance may spark a backlash – and it’s already providing Democrats with a potent new example to rally people ahead of the 2024 election.
The ferocity with which Kacsmaryk drummed up the storm was obvious in heated exchanges between Republicans and Democrats on Sunday. After the administration submitted a judicial appeal to prevent the ban from taking effect on Friday, Health and Human Services Secretary Xavier Becerra promised that women will have access to safe and effective medication.
“We have to succeed in this for the sake of Nation and the cause of women,” Becerra told AWN’s Dana Bash on “State of the Union.”
On the same episode, New York Democratic Rep. Alexandria Ocasio-Cortez termed the verdict a “extreme misuse of power.” As an indication of a growing constitutional quagmire, she claimed that the FDA might essentially ignore it since it was a “farce of our democracy and a mockery of our law.”
Ocasio-Cortez received remarkable bipartisan backing when GOP Rep. Nancy Mace of South Carolina declared on “AWN This Morning” Monday that she agreed with her New York colleague.
“It’s not up to us as legislators, or even as a court system, to judge whether or not this is the correct medicine to take,” Mace explained to Kaitlan Collins. “This is an FDA-approved medication.” It is not your decision whether you agree with its use or not. That is a choice made by the FDA.”
Mace also acknowledged her own party’s abortion concerns. “This is one of those problems that I’ve tried to lead on as a pro-life advocate with some common sense.” On this point, we are incorrect. We must be compassionate towards women, particularly raped women. We need to be compassionate on the abortion issue since, in general, most People disagree with us.”
Nevertheless, Texas Republican Rep. Tony Gonzales told AWN’s Bash that if the FDA took such a step, his party might use its House majority to punish it. “We’re going to have a problem if the administration wants to… not live up to this verdict,” he warned. “It may get to the point when House Republicans on the appropriations committee have to defund FDA projects that make no sense.”
Such a move may seriously hinder a vital arm of the American health-care system and foster cynicism about the regulatory clearance process, which conservatives have targeted in the wake of Covid-19 vaccine mistrust.
Gonzales also dismisses women’s fears that they will no longer be able to obtain mifepristone, as well as outrage at the loss of a constitutional right to make decisions about one’s own reproductive health. His remark was the type of contentious remark that has contributed to Republicans’ troubles with female voters.
“It’s critical that we have genuine debates about women’s health care and… move away from the abortion debate,” Gonzales told Bash. “Women have a lot more problems than just abortion.” Let’s have those actual talks, and speak about what else is going on in the globe.”
The judge’s decision has numerous ramifications.
The new front in the abortion debate will further exacerbate national political turmoil, which is already being fanned by clashes over weapons, a looming debt-ceiling crisis, and Donald Trump’s recent indictment. But, the verdict by Kacsmaryk, who was selected by the ex-president, sparked some potentially contentious debate.
— It prompted a legal clash that appears destined for the Supreme Court. The court may have overstepped his authority by halting the FDA’s approval of mifepristone, a critical resource considering that medicine is used in half of all abortions in the United States. And the Washington judge’s decision sets up the kind of legal squabbles that only the Supreme Court can settle.
— The concept that a single judge in a conservative state might potentially modify millions of Americans’ health-care options creates an unprecedented constitutional predicament. It also contradicts the argument presented by the conservative majority Supreme Court and anti-abortion rights campaigners, who argue that the procedure’s availability should be established by state legislatures.
— Kacsmaryk’s decision also raises the prospect of future drug approval issues or legal challenges to existing pharmaceuticals. It’s also another example of a prominent conservative figure substituting his own lack of scientific understanding for doctors’ and clinical trials’ rigour. According to the FDA, there have been 5 deaths related with mifepristone for every 1 million women who have used it since its approval in the United States in 2000. The risk of death from penicillin is four times higher.
However, Kacsmaryk claimed that the FDA “completely failed to evaluate the psychological impacts of the medicine or a review of its long term medical consequences.” The judge’s “disregard for well-established scientific facts in favour of speculative charges and ideological assertions would inflict harm to our patients and undermine the health of the nation,” according to American Medical Association President Jack Resneck, Jr. “By disregarding medical evidence, the court has intruded into the examination room and intervened in judgements that belong to patients and clinicians,” he continued.
— Republicans may be unhappy with the return of the abortion discussion. The Supreme Court’s decision to overturn Roe v. Wade last year proved to be a motivating factor for Democratic voters in the midterm elections. According to an AWN/SSRS poll done in July, over two-thirds of Americans disapproved of the decision after Roe v. Wade was overturned. Just last week, abortion was a prominent issue in a Wisconsin election that gave Democrats control of the state Supreme Court.
The action by Kacsmaryk, a long-time opponent of abortion rights, is the latest example of a high-profile member of the conservative movement using authority in a way that Democrats contend violates legal and democratic convention. Previous examples include the Republican majority’s expulsion of two Black state legislators from the Tennessee state House last week after they participated in a gun control protest in the chamber; efforts by some conservative states to restrict voting access; and even Trump’s attempt to overturn the 2020 election.
