U.S. District Court Judge Matthew Kacsmaryk’s failed in his attempt to hide the hearing on his inevitable abortion pill ban, and the hearing proceeded on Wednesday in a partly public manner. Kacsmaryk allowed just 19 members of the press and 19 members of the public in the room. No devices were allowed in the courtroom, and audio of the hearing was not livestreamed.
The result of this hearing could be a preliminary injunction attempting to force the FDA to suspend or withdraw approval from an abortion drug that’s been on the U.S. market for two decades, effectively ending the use of the drug nationally.
There’s so much that is blatantly political and absolutely dangerous in this—including the safety of people getting medication abortions—and that is so ripe with the far-right’s corruption of the federal judiciary that of course the case has drawn national attention. Which is why Kacsmaryk was trying to proceed secretly. He wanted the case to be presented out of the public eye, particularly since, as was entirely predictable giving his extremist history, he seems very likely to take the unprecedented step of telling the FDA to remove a drug that has been approved for decades from the market.
RELATED: In 'very irregular' order, Trump judge tries to keep medication abortion ban hearing secret
At issue is a challenge to the federal government’s approval of the drug mifepristone, a medication abortion drug that was approved for use 23 years ago and has proven safe and effective, accounting for roughly one-half of all abortions in the United States. It has remained an option for pregnant people across the country —including in states where abortion has been banned, thanks to networks of abortion advocates and the U.S. Postal Service, after the Biden administration loosened regulations to allow the pills to be sent through the mail in 2021.
Kacsmaryk’s disdain for the FDA and for the drug itself seemed clear when he characterized the approval of mifepristone as hurried, or accelerated. It took four years for the FDA to approve the drug in 2000. That’s after it had been approved and brought to market in France in 1988, following several years of testing, and approved in Europe as early as 1991. There’s nothing in the history of this drug’s approval and use in any country that could be characterized as rushed, except by someone with a clear political agenda.
According to Post reporter Caroline Kitchener, who was in the courtroom, “Kacsmaryk appeared to seriously entertain claims that mifepristone is unsafe—and asked plaintiffs for guidance on whether his court could order the FDA to withdraw approval. Wow.”
The suit was brought by a group calling themselves the Alliance for Hippocratic Medicine (AHM), incorporated in August 2022 in Amarillo, Texas. That’s despite being based in Tennessee. They picked Texas, and Amarillo specifically, for incorporation because it is in the U.S. District Court for the Northern District of Texas Amarillo Division, knowing that 95% of cases filed in that federal district court are automatically assigned to Kacsmaryk, who had been hand-picked by the Federalist Society and Donald Trump because of his raging extremism on civil rights, LGBTQ rights, and reproductive rights.
So the AHM brought the suit in November of last year. Alliance for Hippocratic Medicine v. FDA, seeks to force the Food and Drug Administration to reverse approval on both mifepristone and the drug it is mostly commonly used in conjunction with, misoprostol. The group then asked for an injunction to force the FDA to suspend its 23-year-old approval of mifepristone while the lawsuit proceeds. Here’s where we get into just some of the reasons why this is a bullshit challenge, above and beyond the fact that the federal judiciary should not be in charge of what medications are available to the public.
The first issue is whether the AHM has any standing at all to bring the case. The plaintiffs—AHM, the American Association of Pro-Life Obstetricians and Gynecologists, the American College of Pediatricians, and the Christian Medical and Dental Associations, along with three individual doctors—contend they have members who have treated or at some future point might need to treat patients who are having complications from the drug. This, they argue, is a direct harm to the doctors because it will take up time and resources that could be used to treat other patients. Which is a pretty damned tenuous theory of harm.
Also in question is whether they are within the statute of limitations for filing a challenge to an action by a federal agency. That statute of limitations is six years. Additionally, anyone challenging a federal action is supposed to start with the agency they have a beef with and work those administrative paths before suing. In the FDA’s case, that means filing a “citizen petition.” The anti-choice group argues that a 2019 petition they filed objecting to some new rules the FDA created in 2016 to expand access to the drug counts as them going through this process, even though the Alliance for Hippocratic Medicine did not exist in 2019. They also argue that every time the FDA issues new guidance and modifies the restrictions for the drug, the statute of limitations resets.
The government argues that’s all bullshit. The assertion of harm is entirely speculative, the government argues, and that the plaintiffs can’t point to an actual doctor who can claim an actual injury. Allowing a challenge this flimsy could allow any doctor to challenge any approved drug that they have a problem with, whether they were actually prescribing it themselves or not.
Kacsmaryk said that he would rule “as soon as possible.” The outcome doesn’t seem to be in question.