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The next big abortion fight sits before a Texas judge

Fifty years after Roe v. Wade, abortion access across the country is more precarious than ever. 

WASHINGTON (CN) — As the anti-abortion movement celebrates the first anniversary of reversing Roe v. Wade, there is a new goal underfoot that could allow one judge in Texas to halt abortions nationwide.

Mifepristone — one of two medications used in pill abortions and one that has been safely used by 5.6 million women for over two decades — is now in danger of being taken off the shelves. A conservative group is suing to force federal revocation of the medication’s approval despite FDA data showing a negligible number of complications with mifepristone since 2000. 

Alliance for Defending Freedom has been at the head of a number of conservative legal fights involving religious causes including anti-abortion litigation. The group helped bring litigation that brought down the federal right to abortion. Its next venture aims much higher. 

In November, the group asked a federal judge in Texas to revoke mifepristone’s FDA approval, claiming the agency rushed the process and ignored evidence of the drug being more dangerous than surgical abortions. The group did not respond to a request for comment. 

The Food and Drug Administration calls the suit unprecedented and says it would upend longstanding scientific determinations based on speculative allegations. If a court were to even temporarily block mifepristone’s use, according to the government, patients would experience significant harm. 

By filing in the Amarillo division of the Northern District of Texas, groups like Alliance Defending Freedom can take advantage of procedural rules the court follows that allows plaintiffs to handpick which judge will hear their case. For this fight, the challengers chose U.S. District Judge Matthew Kacsmaryk, a Trump appointee who previously served as legal counsel to a conservative legal advocacy group.

“It's kind of remarkable that a group could look at a national policy question and basically handpick a single federal district judge who, if we ranked every federal district judge, is at the far end of the scale for most likely to be sympathetic to the client,” said Steve Vladeck, a professor of law at the University of Texas School of Law whose teaching and research focus on federal jurisdiction, constitutional law and national security law, in a phone call.

Recently, Kacsmaryk embraced a legal challenge to the federal right to birth control using the court’s ruling in Dobbs v. Jackson Women’s Health Organization. The federal government supports family-planning services through Title X. Because these services are available to adolescents, a father brought a suit that said health care providers need to inform parents if their children received medical care through this program. The right to birth control is closely tied with minors’ rights to privacy, which is why similar suits have not prevailed, however, the case before Kacsmaryk made headway. Kacsmaryk ruled that the administration of Title X violated the constitutional right of parents to direct the upbringing of their children. 

Now presiding over the suit challenging the use of mifepristone, Kacsmaryk could issue a nationwide injunction halting the use of the medication nationwide. This would effectively hobble a key tenant of abortion advocates' strategy post-Roe.  

“It would be an unprecedented decision, and, of course, it would be one with devastating impacts on those who need abortion and miscarriage care,” Jennifer Dalven, director of the Reproductive Freedom Project at the American Civil Liberties Union, said in a phone call. “We've already seen the tragic effects of abortion bans in more than a dozen states. An adverse ruling here would extend that nightmare to people living all across the country from California to New York and everywhere in between.” 

Demonstrators march and gather near the Texas State Capitol in Austin on Friday, June 24, 2022, following the Supreme Court's decision to overturn Roe v. Wade. (AP Photo/Eric Gay, File)

Assigned to any other judge, Dalven said, this case wouldn’t be taken seriously. But because it is before Kacsmaryk, abortion advocates are concerned. 

“This case will be laughed out of court if it were filed somewhere else,” Dalven said. “It's got procedural defect after procedural defect and is substantively really just a nonstarter. But because of where this is filed, we are taking this case quite seriously. And I think that everyone needs to take this case quite seriously. I can't give you odds, but I will tell you that we are paying extremely close attention to this case and are concerned.” 

Increasing access to abortion pills has been a large part of the Biden administration’s response to the Supreme Court’s ruling in Dobbs. The Covid-19 pandemic ushered in the use of pill abortions outside of doctors’ offices. Seeing the success of the new pandemic procedures and the increased need for abortion access, the FDA then finalized a rule change earlier this month that broadened the availability of these pills at more pharmacies. 

While the White House declined to comment on pending litigation, it reaffirmed its commitment to using the drug based on scientific data showing its safety and efficacy. 

Abortion advocates say expanding mifepristone's access is a win after Dobbs. They see efforts to restrict access to pill abortions as an attempt at a national abortion ban. 

“This is a cynical attempt at a national ban on abortion,” Kirsten Moore, director at the Expanding Medication Abortion Access Project, said in a phone call. “Let's be clear, politicians should never get to decide what medications people can and cannot access; that authority lies with the FDA. The idea that a drug-approval infrastructure could be up to a single judge, or that states will be able to recreate their own drug-approval process is rash and downright dangerous. The science is clear that medication abortion care is safe and effective. It's time for anti-choice politicians to stop blocking access to FDA-approved medication.” 

Challenges to abortion access were never going to end with Dobbs, however, court watchers say this case exemplifies a broader problem. Partisan advocates are getting the chance to advance their causes regardless of the merits of their claims by hand-selecting the judges that hear their suits. Of course, the government could appeal to the Fifth Circuit or even the Supreme Court if Kacsmaryk makes an adverse ruling on mifepristone’s approval. In the meantime, however, pill abortions nationwide could be paused. 

“There's a lot of mischief that an erroneous district court decision could inflict while the appeal runs its course,” Vladeck said. 

“The availability of a meaningful appellate remedy is only a good argument in the long term," he continued. "It doesn't answer the short-term problem.” 

This is not only the case for abortion-related issues. Kacsmaryk was the judge who forced the Biden administration to restore the Trump-era “Remain in Mexico” program. The Supreme Court ultimately decided to allow Biden to implement his own immigration policies, but the administration was hamstrung by Kacsmarky’s ruling for 10 months while the appeal proceeded. 

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