With mifepristone at risk, we should all be gravely concerned about abortion rights | Opinion

The U.S. Supreme Court needs to quickly clarify that it means what it said when it held that the issue of abortion is for the political process, not for the judiciary, and that there is no legal basis for a federal judge to stop the distribution of mifepristone, a drug used to induce abortions.

The astounding ruling last week by a hand-picked conservative judge in Texas flies in the face of the court’s command and puts in jeopardy access to abortion medication for women throughout the county. Fast action by the high court is especially necessary now that another federal judge, in Washington state, has issued a conflicting order requiring the Food and Drug Administration to keep the drug available.

Conservative anti-abortion groups brought a lawsuit challenging the FDA’s approval of mifepristone, intentionally filing their case in the Amarillo Division of the U.S. District Court for the Northern District of Texas. There is only one judge, Matthew Kacsmaryk, in that division, and every case goes to him. This is an extreme and disturbing form of judge-shopping.

President Donald Trump appointed Kacsmaryk, who had been deputy general counsel to the ultraconservative First Liberty Institute. In his ruling last week, Kacsmaryk did everything that conservative activists could have dreamed of. This was the first time a judge has ever overturned the FDA’s approval of a drug, and he did so even though the drug has been on the market for 23 years and has been repeatedly proven to be safe and effective.

Medically induced abortions are safer than surgical abortions and far safer than childbirth. But Kacsmaryk repeatedly substituted the FDA’s judgment for his own, relying on the literature from anti-abortion groups, including the unfounded claim that many women regret their abortions.

Kacsmaryrk couldn’t have been clearer in his hostility for abortion rights. He said mifepristone exists “to kill the unborn human,” and even suggested that the embryo has legal rights, something no court has ever espoused and which anti-abortion groups will surely seize onto in trying to argue that laws allowing abortion are unconstitutional.

In a stunning display of judicial activism, Kacsmaryk issued a nationwide injunction preventing the distribution of mifepristone. This is exactly the opposite of the Supreme Court’s commend in Dobbs v. Jackson Women’s Health Organization, which held that the issue of abortion should not be resolved by the courts. Kacsmaryk said his ruling would not go into effect for seven days, allowing time to appeal to the U.S. Court of Appeals for the Fifth Circuit. Although Kacsmaryk’s ruling should clearly be reversed, the Fifth Circuit is also very conservative, with 12 of its 16 judges having been appointed by Republican presidents.

But a quick and necessary path to the Supreme Court was ensured by the ruling of another judge last week. Judge Thomas O. Rice, an Obama administration appointee who sits on the federal court in Spokane, Washington, granted a request by 17 states and the District of Columbia that barred the FDA from taking “any action to remove mifepristone from the market or otherwise cause the drug to become less available.” Unlike Kacsmaryk, Rice said that it’s “not the Court’s role to review the scientific evidence and decide whether mifepristone’s benefits outweigh its risks.”

Until overturned, these district court orders place the FDA in an impossible situation: one commands suspending the approval of mifepristone; the other prohibits suspending the approval of the drug. Unless a federal court of appeals overrule one or both of these decisions, it will be for the Supreme Court to resolve the conflict.

The high court must do so quickly, as the stakes are enormous. Over half of all abortions in the U.S. are medically induced. Mifepristone is administered together with misoprostol. If mifepristone cannot be used, misoprostol can be used by itself, but it’s less effective.

This is an issue for the FDA — not the courts — to decide. One would hope that even the conservative Supreme Court that overturned Roe v. Wade would recognize this and want to keep the federal judiciary out of the abortion issue. But given the anti-abortion views of a majority of justices, there is every reason to be very worried.