Month by month, week by week, day by day, the federal courts are squandering their public trust.
The partisanship of the judiciary was on full display last week when a Trump-appointed judge with a long history of anti-abortion activism issued a mind-boggling preliminary ruling invalidating the Food and Drug Administration’s 23-year-old approval of the abortion pill mifepristone.
The decision threatens to make it much more difficult for patients across the country to access the medication. More than half of all abortions in the United States are medically induced using mifepristone. The ruling is an outrageous assault on a woman’s right to choose.
If upheld, the decision would also undermine the FDA’s authority to determine whether drugs are safe and effective, creating chaos in the pharmaceutical industry. No court has ever overturned an FDA decision to allow distribution of a drug since Congress gave the agency authority in 1938.
The safety of mifepristone should not be in question. It has been used by millions of women since the FDA first approved the drug in September 2000 for medical termination of pregnancy. More than 100 scientific studies reviewed by the New York Times have shown mifepristone to be safe.
The FDA reported that from 2000-22 approximately 5.6 million women in the United States took the pills and 28 have died, or 0.0005%. And some of those deaths may have been because of other causes. That’s far safer than childbirth or, according to a CNN analysis, common prescription drugs such as penicillin and Viagra
But that didn’t stop U.S. District Court Judge Matthew Kacsmaryk from claiming there are questions about the drug’s safety. His ruling, which contradicts the scientific evidence, is steeped in anti-abortion terminology, referring, for example, to “chemical abortion” rather than medication abortion and “unborn human” rather than fetus.
It’s no accident that the case landed in Kacsmaryk’s courtroom. An anti-abortion group of doctors, the Alliance for Hippocratic Freedom, knew what they were doing when they went judge shopping by opening an office in Amarillo, Texas. Kacsmaryk is known for his opposition to women’s reproductive freedom as a lawyer for the First Liberty Institute, a nonprofit Christian conservative legal organization based in Texas. And he is now the only federal judge in the Amarillo Division of the Northern District of Texas.
Hours after Kacsmaryk’s ruling, in a separate case, federal Judge Thomas Rice in the state of Washington ordered the FDA to make no changes to the availability of the drug in the District of Columbia and the 17 states involved in that suit. It’s likely that the U.S. Supreme Court will make the ultimate call on the use of mifepristone.
The high court must decide whether it will follow the law and the science or succumb to political ideology.
Public trust in the courts has been plummeting in recent years. An Annenberg Public Policy Center poll last September shows only 39% of U.S. adults approve of how the high court is handling its job. Fifty-three percent have little or no trust in the Supreme Court to operate in the best interests of the American people, up 22 percentage points since 2018.
Taking away women’s legal right to a safe and effective drug and undermining the FDA’s authority to determine which drugs are safe and effective will only further erode the public’s trust.
—The Editorial Board, Bay Area News Group
