CNN
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A single conservative judge in Texas has provoked sudden health care and legal chaos by effectively halting the nationwide use of a popular abortion drug by the end of the week.
US District Judge Matthew Kacsmaryk’s decision to suspend the Food and Drug Administration approval of the drug mifepristone, which has been used safely for more than 20 years, marked an extraordinary use of judicial power in the face of scientific data and is likely to force the Supreme Court to take up abortion again, a year after it overturned Roe v. Wade.
His ruling on Friday, which he paused for a week to allow appeals, also represented a judicial intervention into the health care decisions of millions of American women and could effectively make abortion unavailable in many states if it goes into force. The Biden administration is already mobilizing to thwart the judge’s audacious move after lodging an appeal.
But the ruling is causing sharp political reverberations amid criticism from health care regulators and providers. The situation is complicated because less than an hour later, a judge in Washington state issued a dueling ruling requiring the government to keep the drug available in 18 liberal jurisdictions that had sued to expand access to abortion pills. Politically, this latest resurgence of abortion politics will raise fears among Republicans that the party’s rigid anti-abortion line could provoke a backlash – and it’s already giving Democrats a powerful new example to mobilize voters heading into 2024.
The intensity of the storm Kacsmaryk whipped up was evident in heated rhetoric between Republicans and Democrats on Sunday. Health and Human Services Secretary Xavier Becerra vowed that women would have safe and effective medication available after the administration launched a legal appeal to stop the suspension from going into force on Friday.
“For America’s sake and for women’s sake, we have to prevail in this,” Becerra told CNN’s Dana Bash on “State of the Union.”
New York Democratic Rep. Alexandria Ocasio-Cortez called the ruling an “extreme abuse of power” on the same show. And in a sign of a growing constitutional tangle, she suggested the FDA could effectively ignore it on the grounds that it was a “mockery of our democracy, and a mockery of our law.”
Ocasio-Cortez won unusual support from across the aisle when GOP Rep. Nancy Mace of South Carolina said on “CNN This Morning” Monday that she agreed with her colleague from New York.
“It’s not up to us to decide as legislators, or even as a court system, whether or not this is the right drug to use or not,” Mace told Kaitlan Collins. “This is an FDA-approved drug. Whether you agree with its usage or not, that is not your decision. That is the FDA’s decision.”
Mace also recognized her own party’s problems on the abortion issue. “This is one of those issues that I’ve tried to lead on as someone who’s pro-life and just have some common sense. We are getting it wrong on this issue. We’ve got to show compassion to women, especially to women who’ve been raped. We’ve got to show compassion on the abortion issue, because by and large, most of Americans aren’t with us on this issue.”
But Texas Republican Rep. Tony Gonzales told CNN’s Bash that his party could use its House majority to punish the FDA if the agency took such a step. “If the administration wants to … not live up to this ruling, then we’re going to have a problem,” he said. “It may come (to) a point where House Republicans on the appropriation side have to defund FDA programs that don’t make sense.”
Such a move could severely impede a critical arm of the American health care system and deepen acrimony surrounding the regulatory approval process, which was attacked by conservatives amid skepticism of the Covid-19 vaccine.
Gonzales also blithely dismissed concerns of women who will fear they can no longer get mifepristone and anger over the removal of a constitutional right to make decisions about one’s own reproductive health. His comment was exactly the kind of controversial statement that has contributed to Republicans’ struggles with female voters.
“It’s important that we have real discussions on women’s health care and … get off the abortion conversation,” Gonzales told Bash. “Women have a whole lot more other issues than just abortion. Let’s have those real conversations, and let’s talk about the other things that are happening in this world.”
The new front in the abortion battle will only intensify national political tumult, which is also being fueled by showdowns over guns, a building debt-ceiling clash and Donald Trump’s recent indictment. But the ruling by Kacsmaryk, who was appointed by the ex-president, stirred up some potentially intractable controversies.
— It set up a legal collision that seems destined to end up at the Supreme Court. There is the question over whether the judge overstepped his power to halt the FDA’s approval for mifepristone – a key resource given that half of US abortions are performed using medication. And the Washington judge’s ruling sets up the kind of dueling interpretations of law only the Supreme Court can resolve.
— The idea that a single judge in a conservative state could potentially change the health care options of millions of Americans sets up an extraordinary constitutional situation. It also flies in the face of the reasoning advanced by the conservative majority Supreme Court and anti-abortion rights advocates – that the procedure’s availability should be determined by legislatures in individual states.
— Kacsmaryk’s ruling also threatens to create problems for the approval of future drugs or to open the way to legal challenges for existing drugs. And it is another sign of a prominent conservative figure substituting his own lack of scientific expertise for that of doctors and the rigor of clinical trials. Since its approval in the US in 2000, there have been 5 deaths associated with mifepristone for every 1 million people who used it, according to the FDA. The risk of death from the use of penicillin is four times greater.
Kacsmaryk, however, argued that the FDA had “entirely failed to consider the psychological effects of the drug or an evaluation of its long term-term medical consequences.” American Medical Association President Jack Resneck, Jr. criticized the judge’s “disregard for well-established scientific facts in favor of speculative allegations and ideological assertions will cause harm to our patients and undermines the health of the nation.” He added: “By rejecting medical facts, the court has intruded into the exam room and has intervened in decisions that belong to patients and physicians.”
— The resurgence of the abortion debate may be unwelcome news for Republicans. The overturning of Roe v. Wade last year turned out to be a motivating factor for Democratic voters in the midterm elections. According to a CNN/SSRS poll conducted last July, after Roe v. Wade was overturned, nearly two-thirds of Americans disapproved of the decision. And just last week, abortion was also a key issue in a Wisconsin election that handed control of the state Supreme Court to liberals.
The decision by Kacsmaryk, a long-time opponent of abortion rights, is the latest occasion where a high-profile member of the conservative movement has launched a daring application of power in a way that Democrats argue trashes legal and democratic convention. Previous examples include the Republican majority’s expulsion of two Black state legislators from the Tennessee state House last week after they joined a gun control protest in the chamber; attempts by some conservative states to curtail voting access; and even Trump’s bid to overturn the 2020 election.
