There is nothing conservative about the ruling last week by Trump appointee Judge Matthew J. Kacsmaryk of the U.S. District Court for the Northern District of Texas that invalidated the Food and Drug Administration's approval of mifepristone, which is the first pill used in the typical two-drug medication abortion regimen that accounts for half of the abortions in the United States. The decision has been temporarily stayed, meaning it has not yet gone into effect, and the question now is whether the stay will be extended, even as there is talk of stockpiling the drug.
The lawsuit was brought in Amarillo, Texas, because that is where Kacsmaryk, a vocal critic of Roe v. Wade, sits. It was brought by anti-abortion groups 23 years after the drug was approved by the FDA. Traditional conservative standing doctrine would hold that the anti-abortion groups who brought the suit waited too long and could complain of no specific injury sufficient to give them standing to sue. They would be thrown out of court. But this is abortion. Will traditional rules apply?
Conservatives have been willing to jettison traditional rules -- like respect for precedent, and stare decisis, not to mention standing and judicial restraint — when the issue is abortion. But Kacsmaryk really pushed the envelope, finding that the FDA failed to adequately review the scientific data on mifepristone, a claim that the agency vigorously contested with 23 years' worth of data that is tough to debate.
What is really going on here is a long-planned strategy to eliminate access to abortion. It depends on hypocrisy at every level. That must include courts, who must be willing to abandon at least two sets of doctrines that conservatives tend to hold dear. The first requires that someone show actual injury to file suit, and the second requires the courts to show deference to executive agencies charged by Congress with implementing their statutory authority, as the FDA has done here in regulating drugs. Time and again, the Supreme Court has deferred to the FDA's regulatory expertise. Does that expertise end because the subject is abortion? There is only one judge who sits in Amarillo, Texas, and he happened to have written extensively and critically about Roe v. Wade.
There is another case making its way through the courts, this one involving a suit by the attorneys general of 17 states and the District of Columbia before Judge Thomas O. Rice of the U.S. District Court for the Eastern District of Washington, an Obama appointee. The suit challenged additional restrictions the FDA had placed on mifepristone to maintain the status quo. The district judge said the FDA had to maintain the availability of mifepristone in the states that filed the lawsuit, which make up the majority of states where abortion remains legal.
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The Texas case will, in the short run, go up to the circuit court and potentially the Supreme Court on the issue of whether the judge's decision will be stayed pending appeal — meaning that the drug will continue to be available pending appeal — and whether the Supreme Court will ultimately decide to hear the case.
In the meantime, however, it introduces even more uncertainty into an already uncertain and confusing landscape that young, poor and vulnerable women must navigate. And that, sadly, seems to be the point of this exercise. To make a difficult and sad situation even more difficult. Why? It is supreme hypocrisy, at its worst.
This Susan Estrich commentary is her opinion. She can be reached at sestrich@wctrib.com.
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