Should Biden, FDA Just Ignore Upcoming Rightwing Hack Abortion-Pill-Banning Judge Ruling?
We've all been sitting around waiting to see if a rightwing hack judge (one of dozens Donald Trump appointed to the federal bench) will ban abortion pills nationwide. Mifepristone, taken along with misoprostol, is responsible for more than half of all abortions in the US. It's been FDA-approved since 2000, but that probably won't matter much to Judge Matthew Kacsmaryk of the Northern District of Texas.
Anti-abortion groups moved quickly after the Supreme Court overturned Roe v. Wade and forum shopped until they dropped, filing a BS complaint in Kacsmaryk's kangaroo court. This is one of the worst examples of "judicial review," and I was pleased when Sen. Ron Wyden from Oregon called bullshit on the Senate floor.
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Calling Kacsmaryk (correctly) a "life-long rightwing activist, a partisan, an ideologue, an anti-abortion zealot," Wyden said the judge was "handpicked by Donald Trump and the Federalist Society to pretend to be impartial on the bench but instead ... delivered favorable rulings on the cases his fellow rightwing ideologues funnel his way."
Gee, when the senator puts it that way — you know, truthfully — the whole process sounds corrupt. Kacsmaryk lived down to expectations during a four-hour hearing last week where he didn't bother much with even the pretense of appearing impartial. Hell, when Batman's enemies kidnapped him and put him on trial once, the Joker was a more impartial judge. Kacsmaryk repeatedly mimicked the wording and rhetoric of anti-abortion extremists, including the ones currently in his court arguing for the abortion pill ban.
Each time a lawyer from the Department of Justice, representing the FDA, referred to “medication abortion,” Kacsmaryk returned to the language of conservative Christian activists, using monikers like “chemical abortion” and “mail-in abortion,” phrases at odds with conventional medical terminology.
A rightwing judge might choke on the words "pro-choice" but "medication abortion" is literally what it is. Whenever he refused to use established medical terminology, he signaled both his bias and his unfitness for the bench. However, neither matter now that he enjoys a lifetime appointment.
"Americans can't count on the appellate courts to step in and do what's right," Wyden warned, because if Kacsmaryk overturns the FDA's approval, any appeal would land before Texas's activist Fifth Circuit court. This is the same court that allowed Texas's uterus bounty hunter law to stand until the Supreme Court ruled on Dobbs. From there, it heads to Samuel Alito's Trumped-up Supreme Court, which doesn't "wince at revoking constitutional rights and upending decades of precedent on legal grounds that are flimsy."
Greer Donley, an associate professor of law at the University of Pittsburgh Law School and expert on reproductive health law, somberly noted, “One conservative judge is impacting the rights of women in California and New York,” who would not have access to a safe form of abortion even in states where abortion remains legal.
We all knew or should have known that Alito was lying through his smug teeth when he wrote in the Dobbs decision overturning Roe v. Wade, "The authority to regulate abortion is returned to the people and their elected representatives.” That was never going to satisfy anti-abortion extremists. They were coming for abortions everywhere.
“The endgame is to stop as many abortions as possible by any means necessary," Donley said.
But Wyden didn't just read Kacsmaryk for filth last month, though that was fun to watch. He also offered a path of resistance.
Speaking directly to President Joe Biden, Wyden said, "This [ruling] has nationwide implications to halt access to mifepristone. My view is President Biden and the Food and Drug Administration must ignore a nationwide injunction from Judge Kacsmaryk."
Elie Mystal at the Nation has previously argued that Biden should ignore extreme rulings on abortion: "The court has no money, it has no power to tax, and it has no army." However, the rightwing courts do have a Republican House majority, which would easily rally votes to impeach Biden for sneezing on Tuesday let alone ignoring judicial rulings. But an extreme ruling that threatens millions of lives might call for such extreme measures. The Supreme Court shattered the glass of judicial restraint with Dobbs and Kacsmaryk is set to stamp on the shattered pieces. There's no putting this back together again.
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Stephen Robinson is a writer and social kibbitzer based in Portland, Oregon. He writes make believe for Cafe Nordo, an immersive theatre space in Seattle. Once, he wrote a novel called “Mahogany Slade,” which you should read or at least buy. He's also on the board of the Portland Playhouse theatre. His son describes him as a “play typer guy."