Mifepristone in the balance
On Friday evening, a judge in Texas ruled against the FDA’s approval of mifepristone, one of two pills used for medication abortions. Just half an hour later, a judge in Washington state ruled that the FDA couldn’t take any steps against mifepristone, directly contradicting the judge in Texas. I have heard of contradictory rulings from different judges before, but I can’t say I’ve heard of it happening at the same time.
We will get to the obvious issue, the future of mifepristone’s availability, soon enough, but first we need to get some things out of the way. Beyond the issue at hand, the big problem here is the ability of federal district court judges to issue nationwide stays/injunctions against laws or other actions taken by the federal government. There was plenty of controversy about it during the Trump and Obama years. It has long been an issue, but has really come to a head during the last ten or so years.
Federal district judges shouldn’t have that authority. This piece articulates well the reasons for why that should be. One reason is what happened on Friday. That is the risk of contradictory injunctions. It is not possible to halt the availability of mifepristone and forbid the FDA from taking any action against it.
There are other reasons for why that authority shouldn’t exist, but I think the biggest reason is how anti-democratic it is. The judiciary is often anti-democratic and that is not always bad, but one judge being able to halt the entire federal government is way too much. Federal district judges can rule on the legality of anything brought to them, but they should not be able to stop it. That should be done by either appellate courts or, more likely, the Supreme Court, if it is done at all.
The other thing going on in the case of mifepristone is the judge himself and how the case got to him. He is a judge in the Northern District of Texas, which includes Dallas and Fort Worth. He is not in either of those cities, but is in Amarillo. He is the only federal district judge there. That means any case that is filed in federal court in Amarillo will go to him.
It is not uncommon for plaintiffs to file cases in jurisdictions where they think they are more likely to get a judge who will be favorable to them. That practice is referred to as forum shopping. It may be frowned upon, but it has been around for a long time and is part of the litigation game. On hot button issues, Democrats and Republicans are both guilty of it.
What happened in the case of mifepristone was not forum shopping. It was judge shopping. The judge in Amarillo has been a favorite of conservatives and Republicans since he became a judge in 2019. Whenever Ken Paxton, Texas’ attorney general, sues the Biden Administration, he could do it in Austin where the capitol is, but he frequently does it in Amarillo. Looking at how the judge there has ruled before it is easy to understand why. He has ruled against the Biden Administration on a whole host of issues during the last two years.
That is what happened in the case of mifepristone. One of the lead plaintiffs incorporated itself in Amarillo last year for that very purpose. Not only does the judge there have a solid record of ruling in favor of Republicans and conservatives, but his entire career before becoming a judge was centered around social conservatism, especially opposition to abortion.
The Northern District of Texas has become known lately for judge shopping. Any lawsuit filed in federal court in Wichita Falls, for example, is guaranteed to go to a judge who has ruled against the Affordable Care Act (ACA) twice. That particular judge has become the go-to judge for lawsuits filed against the ACA because of that reputation.
There are far more Republican appointed judges in the Northern District of Texas than there are judges appointed by Democrats. If a lawsuit is filed in Dallas though there is a chance a Democratic-appointed judge could get it. While Republican-appointed judges are more likely to rule favorably for conservative groups and causes, that is not guaranteed. Why take that chance when you can just file in Amarillo and be guaranteed a favorable judge?
While forum shopping is inevitable, judge shopping is not. This piece gives some good ideas as to how it can be prevented. It notes that judge shopping was a problem in patent cases in the Western District of Texas, which includes Austin, San Antonio and El Paso. Cases were filed repeatedly in Waco because the one judge there was seen as friendly to plaintiffs. The district responded by having all patent cases filed in Waco randomly assigned among its twelve judges. That could be done for cases filed anywhere with only one judge. A district can do that on its own and doesn’t need anyone’s approval.
At a minimum, the appearance of judge shopping is ugly. It will be hard for anyone to believe that a judge who is continuously shopped for by plaintiffs can be impartial in any way. That can only erode trust in the judiciary.
The Texas ruling is insane, extreme, reactionary and pseudoscientific
You will be shocked to discover that I think the ruling from the judge in Amarillo is horrid.[i] There is literally nothing about it that doesn’t scream ideologue and extremist. Although there is no law or duty requiring it, a judicial ruling in my view should lay out matter-of-factly why it ruled the way it ruled, be concise and dispassionate and never sound like an op-ed piece. That is not what this judge did at all. These two pieces are as good of a takedown of the ruling as any.
A judge’s own personal views shouldn’t be apparent from reading an opinion of theirs, no matter how obvious it is what they think. In this case, the ruling could have been written by pick your favorite anti-abortion activist. It describes abortion providers as “abortionists.” It uses loaded phrases like “unborn child” and “unborn children” rather than fetus. It links advocates of abortion rights to eugenics. Rather than describe mifepristone as ending a pregnancy, it says it is used to kill or starve.
The rhetoric is terrible, but it gets worse. To justify halting mifepristone, the judge cited the Comstock Act, a law passed in 1873 that has a horrible history. It was passed primarily with the goal of getting rid of contraception and was used as a tool of persecution in the early 20th century. Its scope was narrowed substantially from the 1930s through the 1970s[ii] by Congress and courts (it no longer applies to contraception), but it still remains on the books.
The ruling even pays homage to the notion that the constitution requires the recognition of a fetus’ right to life. That is the idea that the allowing of abortion is prohibited by the 14th Amendment. So much for resolving abortion through the democratic process. That is luckily a view that is not widely held and was rejected in Dobbs, but it just goes to show how far out there that judge is.
As for the science, the ruling says mifepristone causes great harm to women who use it. That is completely made up. Abortion pills are extremely safe and are much safer than other kinds of medicines that are widely used. As for whether the FDA followed the right procedures in approving mifepristone, there is no way that didn’t happen. The ruling was the first time that a court overruled the FDA’s approval of a drug despite the agency and the manufacturer’s protests that it was safe and procedures were followed. Had the issue been any other FDA approved medicine, there is no doubt the ruling would have gone the other way.
Mifepristone was approved by the FDA in 2000. If they had bungled the procedure or cut corners in any way, somebody would have sued over it then. The fact that nobody sued or raised any fuss about it says it all. Let’s not beat around the bush. This case is not about safety concerns or procedures. It is about trying to stop abortion. The judge spent his entire career fighting against abortion and the plaintiffs filing the lawsuit have done the same. Legal niceties prevent them from saying so explicitly, but that is all that is going on here.
Next steps
As for what happens now, the judge gave a week before the ruling takes effect. The Biden Administration has already filed an appeal with the Fifth Circuit Court of Appeals. They have the option of going directly to the Supreme Court (SCOTUS) if the Fifth Circuit doesn’t reverse the ruling or act quickly enough.
I am sure the Fifth Circuit will not be helpful. It is not only solidly conservative, but most of the judges who sit on it are in a league of their own when it comes to how far they are willing to go in pursuing right-wing goals. Not only have they made rulings that are well to the right of other circuit courts on substance, but they have also made public statements and written opinions that could have been made or written by Tucker Carlson.
Until this coming Friday, the ruling is not in effect so nothing changes. Assuming the Fifth Circuit doesn’t reverse it and SCOTUS doesn’t put it on hold while they hear it, it is not clear what happens. The ruling will go into effect, but the contradictory ruling from the judge in Washington will also be in effect. The Biden Administration has not yet said what they will do then.
The ruling from the judge in Washington applies to the 17 states who were a party to that lawsuit. I have no doubt those states will all want to follow the Washington ruling and not the Texas ruling. The governors of Illinois and Massachusetts have said mifepristone will remain available in their states no matter what. That is all but saying they will not be following the Texas decision. I am sure other governors will say the same if they haven’t already.
Ignoring a court ruling is not something to be encouraged. That said, in this case, it is impossible not to do it, at least in those 17 states. If they complied with the Texas ruling they would be defying the Washington ruling and vice-versa.
Ultimately, this will go to SCOTUS. There is no way that doesn’t happen. Even if by some miracle the Fifth Circuit reverses the Texas ruling, other lawsuits will be filed in other places. Sooner or later, one of them will find a way to survive the lower courts. SCOTUS will have to settle it.
How will it end?
Assuming it gets to SCOTUS, I am hard pressed to think the ruling from Texas will stand. The increasing partisanship of the judiciary notwithstanding, there are limits to it, both legal and political. Leaving aside the substantive and emotional aspect of the matter at hand, the plaintiffs’ case is incredibly weak. Even before arguing the merits of the case, there are reasons to believe the statute of limitations has already passed and the plaintiffs lack standing to sue in the first place.
One possible consequence of ruling in favor of the plaintiffs is the kind of door it could open. If mifepristone can be successfully sued to get its approval revoked, the same could happen to any other drug approved by the FDA. Traditionally, the FDA is deferred to in deciding whether to approve a drug. If that is no longer the case, it could be open season for all kinds of litigation against any medicine that the FDA has approved. That will be a bad world for almost everyone and is not a door SCOTUS will want to open.
In the end, I don’t think those are the reasons why SCOTUS will not let the Texas ruling stand. When it comes to the statute of limitations and standing, someone will eventually satisfy the requirements, which is why I doubt SCOTUS will dismiss the ruling based on that. They know it will get to them at some point and will probably not want to kick the can down the road. As for whether letting the Texas ruling stand will open the floodgates to lawsuits against every drug, I’m sure at least five people on SCOTUS could come up with some hackish way to limit it to just this case.
The reason I don’t think the Texas ruling will stand is political. Everyone on SCOTUS is a politician, they just wear robes and don’t have to worry about elections. Some are more savvy than others. John Roberts is one of the savviest politicians around. That is not because he is a closet moderate. On the contrary, he is every bit as conservative as the other five. He wants to move things in a conservative direction, but wants to do it quietly and in a way that doesn’t generate a backlash. The three Trump appointees are closer to a median but sane House Republican. Thomas and Alito are Marjorie Taylor Greene.
In the Dobbs decision, Roberts wanted to uphold Mississippi’s 15 week abortion ban. The standard for deciding whether a law restricting abortion was constitutional under Casey (the successor case to Roe) was if it imposed an “undue burden.” He wanted to get rid of that and create a new standard that basically asked whether the woman had enough time to decide what she was going to do. That is probably where public opinion is.
Roberts didn’t want to reverse Roe. He wanted to narrow it and probably keep narrowing it over many years. I think he was the one who leaked the draft of the Dobbs opinion last May. I don’t have any inside information on it, but it makes the most sense. He was trying to warn the other five of the backlash that would happen from reversing Roe altogether. They didn’t listen, but I think it’s safe to say his concerns have been vindicated.
When Roe was reversed, one thing those in the majority pointed to was that it would not affect the availability of abortion in states that had already legalized it. Brett Kavanaugh, in his concurring opinion, wrote that states could not prevent women from traveling to other states to get an abortion. While the stakes in Dobbs were high, the stakes in the case of mifepristone are arguably just as high.
If mifepristone is no longer available, that would apply nationwide. It would limit access to abortion in states where it is legal and widely supported. The politics of doing that are toxic for Republicans. One thing that has been very noteworthy in response to the Texas ruling is that virtually every Democratic governor and member of Congress has condemned it while virtually all of their Republican counterparts have said nothing about it. There has been nothing from Trump, Ron DeSantis, Mitch McConnell or Kevin McCarthy. Other than Mike Pence, none of the presidential and potential presidential candidates have said anything about it as of this writing. That tells you all you need to know about which party has the advantage.
The Republicans’ narrow majority in the House depends on keeping seats in California and New York next year. Those are states where abortion is legal and pro-choice sentiment is very high. Because of that abortion has been less of an issue there and so Republicans have not had to deal with the backlash to laws banning abortion like they have in other states. If access is to abortion is threatened in those states, all bets are off.
To circle back to SCOTUS, six of them are committed Republicans. Roberts plus at least one other won’t want to pour fuel on the fire they’ve created. Abortion is the last thing Republicans want to discuss. Banning abortion pills nationwide is a guaranteed way to make it a dominant issue if not the dominant issue. Abortion is not the only issue people vote on, but when its legality is clearly on the line, as it was last week in Wisconsin, people are going to be highly motivated to support it. There is no better way to make those stakes clearer than to have a nationwide fight over abortion pills.
What happens if SCOTUS agrees with the Texas judge? That is for another blog post. Let’s just say we’ll cross that bridge when and if we get there. I wrote about my thoughts on SCOTUS as an institution over the summer so feel free to check it out.
[i] There are many other ways I’d like to describe the ruling, but I try not to use bad words when writing.
[ii] Some states passed their own versions of the Comstock Act. The most famous one was in Connecticut, which was struck down in Griswold v Connecticut, establishing the constitutional right to contraception in 1965. Those are the kinds of laws that judge cited favorably in case you weren’t convinced of how insane, extreme and reactionary he is.