Texas Anti Abortion Judge Kacsmaryk – The Little Engine That Can’t
One of the bugs or features of mass media (substitute the pejorative ‘Mainstream Media’, if you wish) that I have written about here and on my Facebook timeline regarding, is the manner in which it often takes the posture when reporting on polarizing public policy of framing things that are not a matter of intrigue and adding a dimension of cliffhanger suspense.
This was true in recent election cycles such as the 2022 national midterm elections, where instead of cautioning against relying on poorly constructed and intentionally skewed polling, the mass media opted to perpetuate the “Red Wave” narrative despite so many signs pointing toward the contrary.
I’ve argued that this is done for the same reason that Facebook and Twitter, along with Youtube and other social media platforms amplify extremist propaganda and disinformation – it drives engagement.
Media Reporting and Suspense / Thriller Movies. See The Difference? No, not much.
Cable networks, particularly those who might be regarded as somewhat left of center (CNN, MSNBC), but by no means exclusively, demonstrate a pattern of taking the shell of a news story and I can only conclude, scrubbing it of any elements that contradict the presentation that most creates anxiety on the part of the viewer. You could think of it as the televised version of “doomscrolling” – “doomviewing”?
The latest example of this, and I can only attest firsthand in terms of how CNN is handling it, is the coverage of the legal hearings in the Amarillo, Texas federal courtroom of District Judge Matthew J. Kacsmaryk, dealing with a lawsuit Alliance for Hippocratic Medicine v. FDA to force the Federal Drug Administration to withdraw its approval of the abortifacient Mifepristone also known as RU 486 to prohibit the brand name manufacturer, Danco, from distributing it.
And as Vox points out, “thanks to an obscure rule governing which federal judges are assigned to hear cases in Texas federal courts — 95 percent of civil cases filed in Amarillo, Texas’s federal courthouse are automatically assigned to Kacsmaryk — this prurient man is now one of the most powerful public officials in the United States.”
The judges that preside over the Northern District of Texas and the plaintiffs know Kacsmaryk is an easy mark or an easy Kacsmaryk, if you will.
The Trumpy Theocratic Judge, his supplicants and the Baptist attorney
Kacsmaryk, if you needed any further confirmation of his far right judicial outlook, is a darling of the notorious Federalist Society, who, as of late, have leaned toward adopting a policy that God and “Natural Law” should dictate the function of government and the justice system and that the Constitution is unnecessarily impeding a desired shift toward religious autocracy.
It is worth noting that this judge, appointed by one term loser, former President Donald Trump, was intentionally sought out by the plaintiffs due to his known religious Christofascism in general (anti LGBTQ, Xenophobia), his previously having served as deputy general counsel for the conservative Christian First Liberty Institute and his ideological opposition to abortion in any shape or form.
That Kacsmaryk will, without a shadow of a doubt, rule in favor of blocking the manufacturing, distribution and prescription of Mifepristone, is an understatement. There is really no drama on that score. As of this writing, it’s not yet official, but there is no suspense. He’s already made his decision, despite some head fakes to the contrary just to con virtually no one into believing he’s something other than he is.
One example is his brief dialog with plaintiff’s counsel, Eric Baptist (no, I am not making that up).
Taking mifepristone from the market “would restore proper policing power to the states,” Baptist argued, according to The Associated Press. Baptist reportedly acknowledged, however, after prodding from the judge, that there’s no precedent for an order removing medication that’s been approved for decades. Asked if he could cite any example, Baptist reportedly answered: “No, I can’t,” according to the Washington Post.
A bizarre contradiction among many, is Baptist’s reference to restoring “proper policing power to the states.” A number of states have, or are in the process of enacting statutes that would reject the authority of any other jurisdiction to prohibit or interfere with the provision of all forms of reproductive health care. California, New York and New Mexico are just a few of these.
With that set forth, it should not come as any surprise that lawyers from Federalist Society spinoff, the Alliance Defending Freedom, are the attorneys who have filed the suit on behalf of the Alliance For Hippocratic Medicine. The Alliance For Hippocratic Medicine is to anti abortion activity, what ‘America’s Frontline Doctors’ are to opposition to vaccines and COVID precautions.
The out of control pearl clutching
Although I mentioned televised news outlets, this sort of coverage is by no means limited to them. If you simply do an internet search along the lines of “Texas case could prohibit mifepristone nationwide”, you will generate link after link with such preview summaries as:
“Texas abortion pill case: How ruling could impact nationwide …” (WA PO)
“Federal judge could force abortion pill mifepristone off …” – (NPR)
“Texas judge hears abortion pill case that could disrupt access …” (CBS)
“Abortion pills could be BANNED across the US” – (Daily Mail UK)
Even the New England Journal Of Medicine published an article titled, “A lawsuit contesting the FDA’s approval of mifepristone could restrict access to medication abortion by removing the drug from the entire U.S. market.”
Most reporting on this case, reflects this posture. Let’s look at some samples of the overheated perspective and lack of counterbalance in this reporting.
News outlets, whether online or televised, will most often reference quotes from representatives of abortion access providers and activist groups, which makes sense other than these organizations have adopted the view that the more alarmist they frame the tactics of the forced birth element, the more likely their allies will sit up and pay attention. That sort of approach can be overplayed, however.
Liz Wagner, senior federal policy counsel for the Center for Reproductive Rights, during a visit from Health and Human Services Secretary Xavier Becerra at a Virginia abortion clinic, told Becerra that, “It’s hard to really comprehend the full and terrible impact if what the plaintiffs have asked for in that case is actually granted. It would be catastrophic.”
“I don’t think it’s a stretch at all,” Amy Hagstrom Miller, chief executive of Whole Woman’s Health, a network of abortion clinics with locations across several states, including Texas, said to reporters, adding, “I have a lot of experience with these crazy legal theories that sound radical in Texas actually becoming reality.”
The posturing on this from such organizations is understandable from their perspective, but for mass media to not point out the hyperbole inherent in the messaging, is irresponsible journalism. That this judge in his Northern District of Texas court, could singlehandedly bring access to Mifepristone to a grinding halt, much less permanently block its use, just doesn’t pass the sniff test.
Let’s look first look briefly at the outlines of the lawsuit and then we’ll dig into the facts that strongly argue against the dire prognostications.
The case itself, stinks
The entire foundation of this civil suit is structurally defective. The very fatal flaw of ADF’s case is “the law and the facts”. Scientists and medical professionals are in wide agreement that Mifepristone is among the most researched and safest medicines in the world; safer than Viagra, Penicillin and for that matter, it has even been shown to be safer than one of the most common pain relievers available everywhere over the counter – Acetaminophen, popularly known as Tylenol.
Were I the judge in the case (which would never happen because I wouldn’t be on the plaintiff’s shopping list), I would ask plaintiff’s counsel, “any reason why you aren’t here to ask me to order that the FDA also rescind their approval for Viagra or Tylenol?”
As the FDA’s counsel, I would ask the plaintiffs, why they have no issues with Advair Diskus (a commonly prescribed asthma inhaler), or Wellbutrin and Xanax (anti-depressant & anti-anxiety), Lipitor (cholesterol inhibitor), Flonase Nasal Spray 100 mcg (allergy), Nexium (heartburn), Clarinex (allergy) and dare I even mention it, also Botox, which we all know is largely for vanity obsessed people who spend an inordinate amount of time in front of the mirror fretting about their rankings on physical appearance among their peers.
It would be interesting to pose the question to the plaintiffs, “what about the sin of vanity and fixation on self? Aren’t you obligated to bring suit also against the manufactures and practitioners of Botox, according to scriptures such as 1 Samuel 16:7“. “But the LORD said to Samuel, “Do not consider his appearance or his height, for I have rejected him. The LORD does not look at the things people look at. People look at the outward appearance, but the LORD looks at the heart.”
Mind you, I have only touched on a few of dozens of commonly available FDA approved medications that are dramatically more risk inherent than Mifepristone, but whose manufacture, distribution and prescriptions for are of no interest or concern to the plaintiffs.
Medicated abortions threaten the Christian Moral Order. How dare they?!?!?!
Why is that? It’s not complicated. Mifepristone provides safe options for women to exercise autonomy over their own reproductive health and functioning. According to the religious right / Christian nationalism element, that is not acceptable when they are attempting to restore the patriarchal, Christian moral order that dominated society and particularly women, for all of recorded history sans the last 100 years.
By the way – when Donald Trump exhorts his followers to “take our country back”, this is what he means and he’s not talking about standing around with slogans Sharpied on cardboard signs.
Viagra, of course, is not a concern, because presumably, it leads to the facility of more sexual encounters, which eventuate in more pregnancies, which result in more births, which God requires of His subjects. It says so in Genesis 1:28, don’t you know? That’s the first reference to mathematics in the Bible and the homework assignment to be turned in no later than Tuesday, is human multiplication.
They love other parts of the O.T. as well, except some of the parts that contradict their theology of enforced births, like Numbers 5:11-31, where (presumably) Moses describes a ritual prescription to discover if a married woman has been dinging around with a man other than her husband.
The woman is dragged before the priest, where ‘holy water’ is combined with filth from the tabernacle floor and ink from the priest’s written curse. The woman is then compelled to swear an oath that if she has lain with another man, her body will be cursed upon drinking the water of bitterness.
What pray tell, is the bodily curse?
“And when he has made her drink the water, then, if she has defiled herself and has broken faith with her husband, the water that brings the curse shall enter into her and cause bitter pain, and her womb shall swell, and her thigh shall fall away, and the woman shall become a curse among her people.”
In case you haven’t figured out what the curse here is – it’s that the woman will experience a miscarriage! Reasonable and modern minds will conclude that if the garbage the woman has been forced to consume does not result in miscarriage, the trauma of the event she is subjected to, most likely will in nearly all circumstances.
Bet you wonder why this and Exodus 21:22-25 were never discussed in all your years of attending Sunday School and sermons from the pulpit. Do we really want to go back there? Really?
But I digress. The medical premise of this suit is without merit. Mifepristone is common, safe and effective and has other valid and medically critical women’s health applications such as management of failed pregnancies and other uterine disorders.
What’s more, Mifepristone has a 23 year record of safe and reliable use and a (43 year body of favorable experience internationally) with an incredibly low percentage (0.2) of adverse events and the vast majority of adverse events reported to the FDA are not serious, not emergencies, and are frequently expected and readily addressed by the physician.
Nevertheless, the implication is clear. The plaintiffs are singularly obsessed with this particular drug and effecting its prohibition. Next will be birth control. You don’t need psychic powers to see that coming.
The FDA can and should say NO
Here, we come to the problem of the bulk of the false narratives about the national implications of Alliance for Hippocratic Medicine v. FDA. Can this judge actually issue an order that binds the FDA? The answer is that he can issue the ruling, but the ruling would have no force, because it would be in opposition to existing federal statutes that invest the FDA with the sole authority to approve drugs, namely 21 U.S.C. § 355.
Ian Millheiser writing in Vox, comments that:
The plaintiffs’ legal arguments in this Alliance case are ridiculous. One of their primary arguments, for example, is that the FDA didn’t follow its own regulations when it approved mifepristone in 2000. But even if that were true, Congress enacted a law in 2007 that deemed any “drug that was approved before the effective date of this Act” to be in compliance with the relevant federal legal requirements.
Kacsmaryk cannot force the FDA to adopt another process. Unlikely, but possible, is that he might succeed in ordering the agency to revisit the congressionally mandated process, which involves public hearings and new agency deliberations. This could take months, perhaps even years, with no guarantee of the result the plaintiffs are seeking, in fact, the overwhelming odds are against such an outcome.
Meanwhile the FDA leaves a provisional approval in place. And if it comes down to it, President Biden can order the agency to ignore Kacsmaryk’s ruling.
Furthermore, as David S. Cohen, Greer Donley and Rachel Rebouche, writing in Slate, outline:
Even if Judge Kacsmaryk forgoes this process and rules that the FDA’s approval was unlawful and that mifepristone is now deemed a drug without approval, he cannot force the FDA to enforce the decision.
Because the FDA does not have the capacity to enforce its statute against every nonapproved product on the market, it has long been settled law, decided in a unanimous 1985 Supreme Court decision, that the agency has broad enforcement discretion, meaning the agency, not courts, gets to decide if and when to enforce the statute.
The FDA has historically used a risk-based approach to prioritize its enforcement actions, focusing on the products with demonstrated safety concerns.
Occasionally, the FDA will issue a guidance document giving some drug manufacturers safe harbor to violate the relevant statute in certain contexts, such as when the safety risk is low, which it has done with products as wide-ranging as infant formula and fecal transplants. It should decide to take a similar approach with mifepristone if the drug’s approval is removed, given the drug’s exemplary safety profile.
So, as the authors of the analysis on Slate point out, even if Judge Kacsmaryk rules against the FDA, the FDA can opt not to enforce the ruling, which is the most likely response to it from that agency.
And in consequence to that, manufacturers and distributors of mifepristone could continue to sell their product and opt not to remove it from the market. The FDA would almost certainly issue guidance permitting them, under the circumstances, to continue producing and distributing the drug.
But there is another insurmountable obstacle to the plaintiffs in this case. Kacsmaryk’s order, whatever it amounts to, will only apply to the parties in this case, namely the FDA, which he has no enforcement jurisdiction over and Danco, the brand-name manufacturer of mifepristone.
Cohen, Donley and Rebouche go on to observe that no other person or entity would be bound by what he orders, even if Judge Kacsmaryk tries something extreme, like ordering all distributors of mifepristone to cease distribution and all medical care providers to stop prescribing for patients.
Doing so would violate basic federal rules of civil procedure as well as constitutional guarantees of due process that require someone to have notice and an opportunity to be heard before a court binds them with a ruling. Thus, neither GenBioPro, the generic manufacturer of mifepristone, nor abortion providers around the country who prescribe mifepristone would be bound by anything Judge Kacsmaryk orders.
The bottom line of all of this is that Judge Kacsmaryk is not the omnipotent legal authority that the mass media is painting him to be and he likely has no binding authority over the Food and Drug Administration for the reasons we cited and he has no enforcement powers outside the Northern District of Texas.
Kacsmaryk has an unenviable reputation of ignoring federal statutes that he doesn’t agree with, but he has been chastened previously by the Supreme Court. Most recently, he was shopped by opponents of asylum seekers to issue a ruling on the Biden’s administrations handling of Trump’s Remain In Mexico orders.
The Supreme Court, in a majority opinion, ruled that Kacsmaryk also engaged in “unwarranted judicial interference in the conduct of foreign policy,” because his opinion effectively forced the United States government to bargain with Mexico in order to reinstate the Remain in Mexico policy.
The Plan B option
The mass media reporting is both a clever and audacious example among many, of stylized clickbait. Almost none of these articles bother to point out (for reasons we have already established) that even if the most remarkable planetary alignment for the misnamed Alliance For Defending Freedom and its hired gun, Judge Kacsmaryk were to emerge, women’s healthcare providers still have a Plan B workaround.
The go to in this instance – is a misoprostol-only protocol for medication abortion, prescribing just misoprostol pills instead of the standard regimen of mifepristone and misoprostol together. It’s not considered the absolute ideal course of treatment, but still very viable and in large clinical trial group studies, at most 26 of 12,184 (0.7%) evaluable women were transfused or hospitalized for abortion-related reasons. Again though, it’s extremely unlikely matters will come to that.
There is no scenario under which Judge Kacsmaryk or the parties and their agendas he’s entertaining, can slam the door shut on access to medicated abortion options, despite all the Chicken Little, Boy Who Cried Wolf and sky is falling reports that are being cranked out with the speed and frequency of Funko bobbleheads.
The healthy and prudent response to this is to not induce panic in people, but to responsibly remind women that they must exercise vigilance over any and all attempts by the Evangelical / Christofascist Moral Industrial Complex to deprive them of their civil rights. That does not necessitate turning this into a suspense thriller.
Take a chill pill and just keep paying attention. That’s my prescription and you can get it over the counter if tiy ask the pharmacist pretty please and it has zero side effects.