The abortion pill decision by the Supreme Court has renewed interest in a conservative Trump Texas judge.
The next person to weigh in on the abortion pill will most likely be a judge Trump appointed to the contentious Texas case, as the Supreme Court's decision this week rejecting an attempt to limit access to mifepristone is unlikely to be the last word.
Later this summer, US District Judge Matthew Kacsmaryk will have to decide whether or not three Republican states may continue the drug war in his court. The ruling is one of many that will be made in the upcoming weeks that will decide whether or not the case against mifepristone returns to the Supreme Court, and if so, when.
Last year, the Food and Drug Administration's two-decade-old approval of mifepristone was declared invalid by Kacsmaryk, a Donald Trump appointee who had previously worked for a Christian legal advocacy group. This ruling was so broad that it would have taken the medication off the market completely. Now that the case is about to return to his Amarillo courtroom, both sides in the abortion debate are preparing.
Carrie Flaxman, a senior legal advisor at Democracy Forward and a veteran of reproductive rights organisations, declared, "This fight isn't over." "There is still a significant risk to access to this medication.” Without delving into the case's merits, the Supreme Court dismissed the present challenge to mifepristone access on Thursday in a majority decision. The conservative justice Brett Kavanaugh stated in his ruling that the anti-abortion physicians and organisations who filed a lawsuit over the medication lacked standing as they had not suffered harm as a result of its usage.
However, the court's ruling left open the chance that another body would be in a position to contest the actions the Food and Drug Administration took to relax some of the drug's limits between 2016 and 2021. Among these were the allowances for mifepristone to be shipped to patients without a physician visit and for its prolonged use during pregnancy. In his writing, Kavanaugh stated, "It is not clear that no one else would have standing to challenge FDA's relaxed regulation of mifepristone."
The top court refrained from commenting on the viability of the anti-abortion campaigners' allegations about the regulation of the pill by raising procedural objections to the claims. Opponents of the abortion pill may find some sympathy with the conservative majority that overturned Roe v. Wade just two years ago if they can get past the procedural obstacles and get the justices to hear the merits of their argument.
Where the policies of Biden end up dead?
Three conservative states, Missouri, Idaho, and Kansas, had attempted to intervene to oppose the medication with physicians and anti-abortion organisations even before the Supreme Court ruled on the matter. The Republican attorney general of Missouri, Andrew Bailey, stated that he is "moving forward undeterred" in his pursuit of the lawsuit in Texas. Whether the states can do so in his court is a pressing concern for Kacsmaryk. Parties often need to be prepared to defend their decision to file a lawsuit in a particular federal court. Months before they filed their case over mifepristone, an organisation named the Alliance for Hippocratic Medicine was established in Amarillo by the doctors and anti-abortion organisations.
One of the lawsuit's more contentious features was the groups' decision to file the action in Amarillo, a remote judicial district in the Texas panhandle. Since Kacsmaryk's courthouse is almost a guarantee to hear any case filed there, conservative litigants and states looking to block the Biden administration's agenda have grown to favour it. President Joe Biden's ideas have been killed by a number of decisions that Judge Kacsmaryk has rendered while serving on the bench. For example, he has dismissed the administration's efforts to use an Obamacare provision to shield LGBT and transgender healthcare workers from discrimination, as well as its attempt to terminate the so-called "Remain in Mexico" programme.
Kacsmaryk stopped the Biden administration earlier this month from enforcing a federal law in four states that mandates background checks be performed on prospective buyers by those who sell firearms online and at gun fairs. Kacsmaryk's first decision in the mifepristone case was noteworthy not just for how broad it was but also for the way he accepted the dramatic language around the procedure used by the anti-abortion movement. A federal appeals court later limited Kacsmaryk's ruling on mifepristone to address solely the actions taken by the FDA to make the medication more accessible.
While the Supreme Court heard arguments regarding the administration's appeal of Kacsmaryk's abortion verdict, the trial judge approved the three states' request to join the case in his court. It is unclear whether Missouri would be allowed to pursue its complaint in Kacsmaryk's court in Texas, given the Supreme Court's recent decision that the underlying matter must be dismissed due to the doctors' and organisations' lack of standing to proceed. Senior staff attorney for the ACLU Julia Kaye stated, "This lawsuit should not be allowed to continue in Amarillo because now that the Supreme Court has found that the original plaintiffs lacked standing, that means the case was defective from the start."
The organisations opposing mifepristone contend that the states' right to file lawsuits should be unaffected by the Supreme Court's ruling. Erin Hawley, senior counsel at Alliance Defending Freedom, the conservative organisation that defended the doctors before the Supreme Court, stated that the "ruling does not impact the states below." "I anticipate that those states will continue to make different standing arguments than our doctors have in this litigation." A request for response from the attorneys general's offices in Missouri, Idaho, and Kansas was not answered.
Attorneys general from those states, as well as maybe Republican leaders from other states, may search for a favourable courthouse elsewhere to bring a comparable challenge if Kacsmaryk determines that those states cannot proceed with their complaint in his Texas courthouse. But in most other state federal courts, their case would be allocated at random to one of several judges, not all of whom would be staunch conservatives.
States might also be defeated on standing
The anti-abortion doctors who sued in the mifepristone case said that they could have to treat patients who had side effects from the medication, like heavier-than-expected bleeding. They claimed that categorising those women had a significant influence on their procedures. The FDA informed the Supreme Court that mifepristone is safe, as did a number of medical associations, including the American Medical Association. Some claimed they had been asked to carry out post-medication abortion operations, which they felt went against their religious convictions. However, the Supreme Court disregarded that argument, pointing out that doctors are already permitted by federal law to refrain from doing procedures that go against their moral convictions.
The states present a distinct case for standing, arguing that government-run healthcare facilities and insurance plans must foot the bill for any side effects from the medication. These kinds of arguments are hotly contested, but the Supreme Court has occasionally been open to states' desperate attempts to block federal action. Last semester, Biden's plan to eliminate student loans was rejected by a 6-3 vote. Because a quasi-government loan servicing organisation would miss out on an estimated $44 million in fees on loans that would have been forgiven under the scheme, the court decided that Missouri could establish standing in order to do this.
Veteran Supreme Court attorney Adam Unikowsky, who has been following the mifepristone case attentively, forecast that the states will have a difficult time reintroducing the matter before the court. States will need to persuade lower courts that they suffered harm as a result of the increased availability of mifepristone, even if they are able to maintain the ongoing lawsuit in Kacsmaryk's court—a challenging order. According to Unikowsky, the Supreme Court's ruling this week does not specifically rule out such scenario, but it also did not clear away any further obstacles. "They're letting someone else try it with the door barely ajar," he said. However, according to Unikowsky, the states' argument "is still weak on standing."
The states "going to have a very hard time - and probably an impossible time" pursuing the case against the FDA's actions, according to Jaime Santos, co-chair of the appellate and Supreme Court litigation practice at the law firm Goodwin. She stated, "That's just the kind of speculative injury that Justice Kavanaugh said isn't enough," in response to the states' attempt to claim that they will be responsible for paying for women who end up in the emergency department after using mifepristone.
