One Democratic senator has a solution for the problem of the lone extremist judge in Texas who could take the option of abortion medication away from all Americans: Ignore him. Sen. Ron Wyden (D-OR) spoke on the Senate floor recently, and made that case. Through what Wyden deems “court-washing,” Judge Matthew Kacsmaryk, a “lifelong right-wing activist, a partisan, an ideologue, an antiabortion zealot who was handpicked by Donald Trump and the Federalist Society to pretend to be an impartial judge on the bench,” will try to claim the power to put a national injunction on the use of mifepristone. That’s the abortion drug used in about 50% of abortions, one that has proven safe and effective for decades.
“The power of the judiciary begins and ends with its legitimacy in the eyes of the public,” Wyden said. “If that’s what the ruling would do, the answer is to ignore it, at least until there is a final ruling on the underlying matter by the Supreme Court.”
His case is a good one on the merits: the safety of the drug, the truly ridiculous lack of standing of the plaintiffs, and actual existing federal law. Wyden makes the larger case that the right-wing takeover of the courts has resulted in the erosion of the legitimacy of the courts, and increasing lawlessness on the part of those judges. The answer, he says, is “saying enough” and taking them on.
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Wyden has particular expertise on this issue. He was, as he says in this speech, “one of the first elected officials to advocate for its use in our country. In 1990 I chaired the first ever congressional hearing on mifepristone before the House Small Business Committee.” (Disclosure, I was a legislative assistant with then Rep. Wyden, and worked on this issue with him.)
Back then the fight was to break an import alert the FDA, under George H.W. Bush, had place on the drug—a ban that is normally reserved for dangerous and ineffective drugs—so that it could be used in clinical trials and research for a number of endocrine disorders. By that time, the drug had been in use in Europe as an abortifacient for a number years and had proven safe and effective, as it has in the decades it’s been in use here, since its FDA approval in 2000.
Here’s the legal part of his argument: “The Food and Drug Administration approved mifepristone 23 years ago. For those looking to challenge that approval, a little late. The statue of limits allows challenges to food and drug procedures for six years,” Wyden said.
“As part of an amendment of the Food and Drug Act, any drug, any drug previously approved by the agency was deemed to be in compliance with new rules governing the Food and Drug Administration,” Wyden continued. “Mifepristone is covered by that amendment made by the legislative branch. There is no reasonable argument to the contrary.”
There’s the ridiculous claim of standing claimed by the plaintiffs, shredded by Wyden. “They argue—denying science and fact—that some unknown future patient may take mifepristone, experience a highly unlikely side effect, and then somehow find their way into one of their exam rooms for treatment,” Wyden explained. “If a standing claim that ridiculous and overly broad passes muster, then I think it’s time to rip up the legal textbooks in America and start over.”
”That could mean anybody can wander into federal court and seek relief against anybody based on wild dreamed up scenarios, hypothesizing that somehow, some way somebody might be injured in the future. Legal logic be damned. The plaintiffs know that Judge Kacsmaryk is sure not going to let pesky facts get in the way of their agenda that he shares. That’s because Donald Trump and conservative activists planted him to be on that bench in the Amarillo courtroom right now.”
Here’s where Wyden, hardly a firebrand, lets loose.
”To make this more frightening, if and when Kacsmaryk tosses out FDA approval, Americans can’t count on the appellate courts to step in and do what’s right, do what’s constitutional. The appeal would land at the activists Fifth Circuit court of appeals.
“This is the same court that allowed Texas bill SB8, effectively an abortion ban to go into effect before the Supreme Court ruled on Dobbs. From there any appeal would presumably head to the very same Republican majority on the Supreme Court that overturned Roe. The Roberts court doesn’t even wince at revoking constitutional rights and upending decades of precedent on legal grounds that are flimsy. […]
The harm that will result from this decision can’t be overstated. Cut off from care they need, Mr. President, women will die. While this wouldn’t be the first time a judicial decision has caused irreparable harm, this case is particularly offensive. It will come from a lawless judge, picked by the litigants with no standing to bring a case that should be barred by the statute of limits and has absolutely no merit.
The answer? “Americans and their leaders must look at circumstances like this and say enough, not ‘we’ll see what Congress might do or what the appeals court might do. […] What’s needed now is to just say enough.” He points to President Abraham Lincoln’s response to Dredd Scott. “Lincoln’s directive […] was that it’s the constitutional duty of elected officials to resist unconstitutional decisions of the courts, even the Supreme Court, if the rulings will harm the nation and its people.”
“If Judge Kacsmaryk can violate his oath, if the Fifth Circuit and Supreme Court bless such a ruling as legitimate, we are going to see an affront to the Constitution,” Wyden concluded. “As Lincoln told his fellow Americans, the Supreme Court is not the Constitution. Neither is Judge Kacsmaryk. The Constitution and the rights it affords American women are what this country must defend. I’m here to say enough—and defend it.”
This is absolutely the time and place for Democrats, especially President Biden, to start fighting what they’re up against: right-wing judicial tyranny where the deck is stacked against the American people—and unconstitutional judicial acts are the result. It’s time for the rest of the Senate Democrats to follow Wyden in going there.