How can judges be allowed to practice medicine without a license? That’s exactly what appears to be happening in Amarillo, Texas, where a Trump-appointed federal judge seems prepared to ban a drug that helps perform medication abortion.
Back in 2019, when Matthew Kacsmaryk was nominated by Trump for a federal judgeship, the Freedom From Religion Foundation went into action, documenting his extremism and how his work as deputy general counsel for First Liberty Institute, a Christian nationalist group, made him an idealogue unfit for this office with a history of overtly anti-abortion and anti-LGBTQ+ activism. He was confirmed by a 52-46 Senate vote and has been creating judicial trouble ever since.
Now the fate of medication abortion nationwide awaits action by this Amarilllo, Texas-based U.S. district judge. Antiabortionists didn’t just “judge shop” to bring a lawsuit before Kacsmaryk. They built their very organization around the judge, creating the “Alliance for Hippocratic Medicine” last August in Amarilllo’s district. Legal scholar Laurence H. Tribe describes how the “antis” have gamed the system. The group is working with the Alliance Defending Freedom, a well-heeled Christian nationalist legal outfit that is dedicated to banning abortion, denying LGBTQ rights and overturning decades of Establishment Clause jurisprudence.
The lawsuit is seeking to force the Food and Drug Administration to withdraw its 22-year-long approval for the drug Mifepristone. The anti-abortion lawsuit not only endangers the most popular form of abortion care in the United States, but would be an unprecedented attack on the authority of the FDA. (The antiabortionists predicate their lawsuit on the sham claim that the drug is not safe.)
Mifepristone is the first of a two-drug regimen that is used to induce miscarriage through 10 weeks’ gestation in the United States. (Some countries do not limit its use to the first ten weeks.) Mifepristone is followed a day or two later by a second drug, misoprostol, which brings on contractions. Misoprostol, approved by the FDA to prevent and treat gastric ulcers, can be used alone, but takes longer to act and isn’t quite as effective as the combination. Of course, if the anti-abortion goons succeed in banning mifepristone, they can be expected to next set their sights on misoprostol, gastric ulcers be damned.
Today more than half of abortions nationwide occur through pill rather than surgery. In fact, 64 percent of abortions before 10 weeks are via medication abortion. The New York Times has created a map showing how essential the pills are in granting access to abortion care. According to the Times, 40 percent of the nation’s clinics, including more than 80 telehealth providers, offer medication abortion only. In Florida, 58 percent of abortions are via medication abortion, and 61 percent in Georgia. One hundred percent of abortion care in Wyoming is delivered via abortion pills. More than 5 million patients have used the two-drug regimen since 2000. Telehealth since the start of the pandemic has helped popularize the pills, and they are a panacea in states that ban abortion — for those who have the wherewithal to order them from other countries or providers.
Should Kacsmaryk dare to order a ban on mifepristone, especially if he overreaches to ban both drugs, it would create chaos in already overburdened clinics. The Times cites the situation at the Trust Women Foundation, which helps 500 patients a month, many from outside the state, with 60 percent of their patients choosing abortion pills. “You cannot make up 300 patients’ worth of appointments and procedures over the same amount of time,” notes Ashley Brink, the clinic director.
Kacsmaryk has revealed his total wont of ethics by his premeditated failure to put the time of today’s hearing on the public calendar, in a cowardly attempt to avoid public protests and attention to the case. Only yesterday, after massive legal criticism, did the judge finally list it. He’s known for putting on hold the Biden administration’s most recent attempt to end the “Remain in Mexico” policy, thereby revealing his unclouded belief that he as judge can make foreign policy decisions. In more proof that he enjoys practicing medicine without a license, he ruled in December that a federal program permitting minors to obtain birth control without parental consent was unlawful, which halted that program in Texas.
While a ruling banning medication abortion will most certainly be appealed, it would land before the 5th U.S. Circuit Court of Appeals, the most conservative of the appellate courts, and then could go before the same Supreme Court that infamously overturned the federal right to abortion last year. The Freedom From Religion Foundation is monitoring this legal threat, and will join with other groups in taking action to ensure this Christian nationalist judge and others like him will no longer be allowed to subvert individual liberties and force their dogmatic beliefs on others, in short, by symbolically practicing medicine without a license.