Trump Judge Matthew Kacsmaryk Could Effectively Ban Abortion Pill – Rolling Stone

The Alliance for Hippocratic Medicine does not have a robust online presence. Its website consists of a generic landing page that appeared in July, a month before the organization was legally incorporated in Amarillo, Texas. There’s no phone number, no email, no physical address, no board of directors listed. A single button, labeled “Learn more about AHM,” just reloads the page. According to records filed with the Texas Secretary of State, the group’s mailing address is located several states away, in Tennessee, but the decision to incorporate in Texas — in Amarillo, specifically — may prove critical in determining the fate of a lawsuit filed in November challenging the Food and Drug Administration’s 22-year approval of Mifepristone, a key component of the abortion pill. 

It’s the kind of lawsuit that would normally be quickly dismissed, but the Amarillo division of the Northern District of Texas happens to be the judicial fiefdom of a zealous young Trump appointee whose most recent job was as deputy general counsel for a conservative Christian legal advocacy group like the one that filed the lawsuit. If he agrees with their arguments — and there is a real chance he may agree with their arguments — he could issue an injunction that would stop the distribution of the abortion pill, even in states with strong abortion protections like Vermont, California, and New York. 

Without FDA approval, manufacturers won’t ship Mifepristone to providers, providers won’t be able to offer it to their patients, and women seeking to end their pregnancies will, in a best-case scenario, be forced to submit to surgical procedures instead.

More than 3.7 million women have used Mifepristone, which is taken with its companion drug, Misoprostol, to terminate unwanted pregnancies, since the abortion pill became available in the United States more than two decades ago. Last year, more than half of documented abortions in America were done with help from the abortion pill. The pill’s ubiquity, its ability to be sent quickly and discreetly through the mail, and be taken within the privacy of one’s home, has made it a desirable option for anyone seeking to end an early pregnancy. For the women in the 14 states that have banned or severely restricted the practice since Roe v. Wade was overturned in June, it’s one of the last practical alternatives left. 

The abortion pill is popular because it is safe and non-invasive. Side effects (cramping, heavy bleeding) are relatively mild and serious complications are rare. Mifepristone, it’s often noted, is safer than Tylenol or Viagra, but it has been more heavily regulated than fentanyl since its introduction to the U.S. market more than 22 years ago. That is slowly starting to change. During the pandemic, the FDA temporarily loosened restrictions that required Mifepristone to be dispensed in person, under a medical provider’s direct supervision. Just two weeks ago, the FDA made that change permanent, clearing the way for certified pharmacies to dispense the medication with a prescription. 

But as the federal government moves to make the pill easier to obtain, ideologically-motivated groups are using any means necessary to end access altogether. “They’re doing everything they can to try to cut off access to abortion pills, because abortion pills represent one of the biggest strategic threats that they have ever confronted — because they cannot control them,” says Erin Matson, executive director of the activist organization Reproaction, which monitors anti-abortion groups. “They simply can’t stand outside of every person’s home and go searching through every single person’s medicine cabinet.”

According to its spartan website, the Alliance for Hippocratic Medicine is a coalition of a handful of existing medical organizations with anti-abortion views, including American Association of Pro-Life Obstetricians and Gynecologists, the American College of Pediatrics (not to be confused with the mainstream organization, the American Academy of Pediatrics), and the Christian Medical and Dental Associations, with whom the Alliance shares its Tennessee mailing address. Each of those groups has filed past petitions challenging the FDA’s approval of Mifepristone. Those petitions were denied. 

The lawsuit is a new tactic in a long-running effort to force the FDA to withdraw its approval. The threat it poses to abortion access nationwide is quite real, but the lawsuit, from a legal perspective, is deeply unserious. It is the kind of complaint that would be laughed out of court under ordinary circumstances. “It is baseless,” Lorie Chaiten, a senior staff attorney at ACLU, says. “It’s time-barred. It has enormous jurisdictional defects. In the normal world, this case gets dismissed… Unfortunately, I fear that this isn’t a normal world.”

The lawsuit makes three main claims. It claims that the statutory basis on which the FDA’s approval of Mifepristone was issued 22 years ago is invalid (an assertion both the Government Accountability Office and FDA have previously investigated and put to rest). It claims that an 1873 vice law that made it illegal to send “obscene, lewd or lascivious” material through the mail applies to abortion pills (before that law stopped being enforced decades ago, federal courts consistently ruled it doesn’t apply to lawful abortions). And it claims the drug’s original approval wasn’t supported by evidence of safety and efficacy — “which is just junk science,” says Carrie Flaxman, senior director of public policy litigation and law at the Planned Parenthood Federation of America. 

To support its argument that Mifepristone poses serious safety risks, the Alliance’s lawyers make a number of dubious claims like, for example, that “pregnancy rarely leads to complications that threaten the life of the mother or the child.” (One peer-reviewed study found that women are roughly 14 times more likely to die during or after giving birth than from complications of an abortion.) That claim, like a number of others overstating the risks of medical abortion in the lawsuit, is attributed to James Studnicki. Studnicki is the vice president of the Lozier Institute, the research arm of Susan B. Anthony Pro-Life America, one of the largest and most powerful anti-abortion organizations in the country. 

In their response to the lawsuit, made available online Tuesday, lawyers for the Department of Justice outlined its various defects and formally asked the judge to dismiss it. Among other issues, lawyers for the Biden administration note that the six-year statute of limitations to challenge the agency’s action has long since lapsed, and that the Alliance’s physicians — who claim the FDA’s ruling deprives them of the “opportunity to provide professional services and care for the woman and child through pregnancy” — are not regulated by the FDA, and do not prescribe the FDA-approved medicine in question.

If the judge grants the Alliance’s request for an injunction, DOJ lawyers warned, those who need the abortion pill would be unable to access it, causing “significant harm” to both “patients and doctors who depend on Mifepristone.”

But even those strong words understate the potential fallout of an injunction. “This would be a de facto national ban on an FDA-approved product that’s been around, and in use, for 20 plus years,” says Kirsten Moore, director of the EMAA Project, which works to expand access to medication abortion. “It is crazy-making, absolutely crazy-making.”

Advocates like Moore remain worried about the potential impact of this lawsuit, not because of the substance of its claims, but because of the specific judge that these plaintiffs have managed to get the lawsuit in front of: Matthew Kacsmaryk. 

Before he was installed in a lifetime position on the federal bench, Kacsmaryk was the deputy general counsel for First Liberty Institute, a Christian conservative litigation shop known for taking on high-profile culture war cases. (Lawyers for First Liberty were involved in two cases before the Supreme Court last year, including one concerning a football coach who claimed he was discriminated against for his midfield prayers. The court ruled in the coach’s favor.) 

A 46-year-old father of five, Kacsmaryk was nominated by Donald Trump and confirmed by a slim majority of Republican senators in 2019, despite alarms raised about his writing (he once argued against same-sex marriage, no-fault divorce, birth control, abortion and sex outside of marriage — all in the same op-ed) and his work with First Liberty. At the time, the Leadership Conference on Civil and Human Rights warned Kacsmaryk is a “culture warrior who[se] ……