On Friday evening, U.S. District Judge Matthew Kacsmaryk of Texas issued an unprecedented decision withdrawing the FDA’s approval of mifepristone, the first drug used in medication abortion, 23 years after it was first approved. His order, which applies nationwide, marks the first time in history that a court has claimed the authority to single-handedly pull a drug from the market, a power that courts do not, in fact, have. Kacsmaryk’s ruling is indefensible from top to bottom and will go down in history as one of the judiciary’s most shocking and lawless moments. It goes even further than expected, raising the possibility that he will impose “fetal personhood,” which holds that every state must ban abortion because it murders a human. Within an hour of its release, the decision also spurred the start of a constitutional crisis: A federal judge in Washington swiftly issued a dueling injunction compelling the FDA to continue allowing mifepristone in 17 states and District of Columbia, which brought a separate suit in Washington.
Kacsmaryk stayed his decision for one week to let the Biden administration appeal, but his ruling stands a good chance of being upheld at the radically conservative 5th U.S. Circuit Court of Appeals. If his order takes effect, the FDA will be faced with competing, mutually exclusive court orders requiring the agency to simultaneously suspend mifepristone nationwide and preserve access to the drug in 18 blue jurisdictions. The agency cannot comply with both orders at once. And because Kacsmaryk’s is broader, covering all 50 states, it guarantees that mifepristone will be suspended in much of the country. Only the Supreme Court can resolve this looming crisis, and it has a very limited window of time in which to do so. It has been less than a year since the court claimed to rid itself of the abortion issue. Now it must decide whether American patients will lose access to an abortion drug that has been on the market for 23 years and proven safer than Tylenol—on the order of a single, rogue judge.
It is probably impossible to count how many errors, exaggerations, and lies Kacsmaryk, a Donald Trump appointee, put in his decision. The judge appears to have largely copied and pasted the briefs filed by the anti-abortion group that filed the suit, the Alliance Defending Freedom, rephrasing their arguments as his own analysis. [Continue reading…]