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Hearing in closely watched medication abortion case ends without ruling

The Trump-appointed judge overseeing the case said he would issue a ruling "as soon as possible." The decision could upend abortion access far beyond the Lone Star State.

AMARILLO, Texas (CN) — A hearing in a closely watched abortion rights case ended Wednesday afternoon with no clear winners — though the federal judge overseeing the case from his small courthouse in North Texas said he planned to issue a ruling "as soon as possible."

By press time on Wednesday afternoon, no such ruling had yet been filed.

That judge — U.S. District Judge Matthew Kacsmaryk, a Donald Trump appointee — was asked by a Christian medical group to force the U.S. Food and Drug Administration to withdraw approval of two drugs, mifepristone and misoprostol, for use in abortions. Both are widely used to end early-term pregnancies. Because the lawsuit targets the federal approval of these drugs, such a ruling could upend reproductive healthcare even in states with strong abortion protections.

Because of its wide implications, the case has captured attention far outside of Texas. Dozens of groups have submitted amicus briefs in the case, including state governments that both support and oppose the lawsuit.

Several unusual aspects of the lawsuit have also garnered controversy. The party behind the lawsuit, a low-profile group called the Alliance for Hippocratic Medicine, apparently tailored its legal strategy to ensure the case would be heard by Kacsmaryk. Kacsmaryk, who has documented anti-abortion views, sought to limit public exposure to the case, including by taking the unorthodox step of postponing an announcement of Wednesday's hearing.

On its bare-bones website, the Alliance for Hippocratic Medicine offers an explicitly Christian mission statement, saying it wants to "inspir[e] physicians to imitate Jesus Christ."

The group incorporated last year in Amarillo, public records show, where Kacsmaryk is the only federal district judge. Lawsuits filed there are almost certain to appear before him.

None of the groups associated with the Alliance for Hippocratic Medicine are based in the region, The Intercept reported. Therefore, there would have likely been no basis to sue in Amarillo had the alliance not formed there. Meanwhile, the group's mailing address is not in Texas, but in Tennessee.

If those details were not enough to enrage pro-abortion rights groups, Kacsmaryk added to the controversy by delaying public notice about Wednesday's hearing. He did so, he said, because of death threats and his desire to avoid a "circus-like atmosphere."

A notice of the hearing was finally posted late on Monday, after several news groups lodged a complaint over what they said were unconstitutional docketing practices.

Even afterwards, Kacsmaryk did not exactly go out of his way to increase transparency around the hearing. He reportedly rejected a request from a court watchdog group to livestream the proceeding. A broadcast of the hearing was ultimately made available in Dallas, but not in Amarillo where the hearing was actually taking place.

With seating at Wednesday's hearing limited to only around 20 journalists and 20 members of the general public, people were camped out outside the Amarillo federal courthouse well before sunrise.

While journalists had traveled across the state or country to attend, most or all of the public attendees were Amarillo locals.

When the hearing finally kicked off around 9 a.m., it started with a call to prayer.

"Let's pray," a court clerk said as Kacsmaryk entered the courtroom. "God save the United States and this honorable court."

If those locals were hoping for fireworks on Wednesday, they didn't get them. Instead, the hearing focused on the legal nitty-gritty of the case, including questions of whether the alliance had standing to sue at all.

On these issues — as with the case overall — the federal government and the Christian group were sharply divided.

The feds argued that the status quo — an important consideration in injunctions — leaned in favor of keeping these drugs available to patients.

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"An injunction here would interfere with ... every state in the country," Justice Department lawyer Julie Straus Harris argued on Wednesday. She noted that both drugs had legal uses even in states with strict abortion restrictions.

The feds also raised a number of other points that they said cast doubts on whether the group could sue at all. They said the group had long ago passed the statute of limitations to undo approval for mifepristone, which was green-lit in 2000. They said the group had not exhausted administrative procedures with the U.S. Food and Drug Administration — a process by which a group can contest decisions made by a government agency, and which typically must come before anyone can sue that agency.

While the alliance says it represents doctors who have been harmed by the approval of these drugs, opposing lawyers said the group had not shown that doctors were actually harmed.

Instead, the group relied on "speculative injuries," which are not valid claims to bring in court, argued Jessica Ellsworth, a lawyer for Danco Laboratories, which has approval for the drug.

All of this is a flimsy basis to grant the "wholesale withdrawal of a safe and effective drug," said Daniel Schwei, another Justice Department lawyer.

"All drugs have side effects," Ellsworth added. She stressed that the FDA had made no attempts to force doctors to prescribe the drug but instead was simply making it available.

On the other side of the courtroom, lawyers representing the Alliance for Hippocratic Medicine were clear about what they were asking for.

The court should use its authority to "prevent harm" and issue a "universal" withdraw of mifepristone nationwide, argued Erik Baptist, a lawyer with the conservative Alliance Defending Freedom.

"How many more women must die?" he asked.

Anti-abortion doctors face concrete harm from the use of these drugs, in that it "severely impacts the ability of doctors to practice medicine," said attorney Erin Hawley, also with the Alliance Defending Freedom. Hawley is the wife of Republican U.S. Senator Josh Hawley of Missouri.

Hawley pointed to voting rights and environmental lawsuits, which she said provided precedent for a group like Alliance for Hippocratic Medicine to sue on behalf of concerned members.

The lawyers argued doctors had tried to go through an administrative complaint process with the FDA but that it was simply taking too long. They also argued that the feds had overstepped their authority in approving the drugs because pregnancy is neither an "illness" nor a "disease."

The feds pushed back on both these fronts. Anti-abortion activists had not complained about delays in administrative procedures until it was useful for their lawsuit, they argued. They also said the FDA had a congressional mandate to regulate abortion drugs, not least because pregnancy can and does result in serious health effects or even death for the pregnant person.

Regardless, Hawley argued, the feds had approved "mail-order abortions, essentially."

After trying to complain to the FDA directly, anti-abortion groups had been left "waiting and hoping" for years, she said. She argued circumstances of the case pointed to irreparable injury — a bar that justified an injunction.

Kacsmaryk was an attentive judge, asking detailed questions of both sides during their arguments.

His questions for the feds, though, often seemed more pointed, and those for the anti-abortion lawyers more friendly. At one point he asked the government's counsel about "abortionists." Meanwhile, he appeared more eager to help the anti-abortion lawyers craft and hone their arguments.

"I agree completely," Hawkins said at one point, after Kacsmaryk rephrased and summarized one core part of their legal argument.

In the end, though, neither side emerged Wednesday afternoon with a clear legal victory. Kacsmaryk thanked both sides for a "smorgasbord" of excellent arguments and promised a speedy ruling. Around 1:30 p.m., he concluded the hearing.

Follow @stephentpaulsen
Categories / Civil Rights, Health, Law, National

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