Dem
51
GOP
49
Earlier this week, we had an item about how state legislatures in reddish states are gearing up for the abortion wars. Let us not forget, however, that the U.S. system of governance gives an awful lot of policy-setting power to federal judges. And guess what? Some of them are gearing up, too.
Specifically, we refer to Matthew Kacsmaryk, district judge of the United States District Court for the Northern District of Texas. Prior to appointment to the bench, he had a lengthy career as a far-right and anti-abortion activist, enough so that Donald Trump ended up having to send his nomination to the Senate twice, and even then he was barely confirmed. He also sits on a court (the Amarillo division of the Northern District of Texas) where he is the only judge. In short, if you are anti-abortion and you are doing some venue shopping, Kacsmaryk is your man.
At the moment, a group of anti-abortion activist groups is trying desperately to get the abortifacient pill mifepristone banned. There's no way that is going to be accomplished through the legislative process, so they've turned to the judiciary. The lawsuit they have filed is, in a word, laughable. What they are arguing is that the FDA should never have approved mifepristone, because it could prove to be harmful, and so they want the judge to overrule the FDA.
Even with such a brief summary, and even if you are not a lawyer, perhaps you see some of the problems here. "Future harm" is speculative, and is not enough to give the plaintiffs standing. "The FDA shouldn't have done this" is an opinion, and one that runs contrary to the fact that the Agency followed its usual, rigorous procedures before granting approval. And finally, for a judge to override the policies of a federal agency would open up a whole can of worms, and a brave new era in jurisprudence.
In other words, this is a Hail Mary pass that stands on the shakiest of legal ground. What the plaintiffs need is a judge willing to stand on his head in order to deliver the desired result, and they are really hoping that Kacsmaryk is that judge. His ruling is expected within the week. Normally, if a judge were to engage in some naked judicial activism like decreeing an end to all medically induced abortions, he'd be "corrected" by the courts above him. But Kacsmaryk sits on the very right-wing Fifth Circuit, so there's no guarantee they would reverse an anti-mifepristone ruling. Then it would go to the Supremes, and we know where they stand on abortion rights. So, pro-choice Americans have reason to be nervous here. (Z)