Chicago Tribune, Published April 13, 2023
U.S. District Judge Matthew Kacsmaryk of Texas is a household name now. He’s the judge who ignored scientific evidence in favor of partisan politics and invalidated the Food and Drug Administration’s 23-year-old approval of mifepristone, the pill that has become the most common method of abortion in the U.S.
His ruling had been slated to take effect Friday in every state, including blue states like Illinois. But late Wednesday night, the 5th Circuit Court of Appeals temporarily blocked Kacsmaryk’s suspension of FDA approval of the drug, effectively putting the drug back on the market until the full case can be heard on its merits.
But the appellate panel also kept in place aspects of Kacsmaryk’s ruling that shut down the FDA’s 2016 decision to expand mifepristone’s availability up to the 10th week of pregnancy rather than the seventh week, and allowing the drug to be mailed to patients instead of requiring that it be picked up in person from a health care provider.
The Justice Department is appealing the appellate panel’s ruling to the Supreme Court.
Kacsmaryk claimed in his ruling that the FDA’s approval of mifepristone in 2000 was unlawful because it was “based on plainly unsound reasoning and studies that did not support its conclusions.”
In reality, the FDA’s decision to sign off on the drug was based on a plethora of studies that showed mifepristone as an abortion pill to be very safe, and that complications associated with its use were rare. To support his ruling, Kacsmaryk for the most part relied on research linked to anti-abortion organizations.
From a legal standpoint, there’s only one fate that Kacsmaryk’s decision deserves — it should come down like a house of cards.
But his ruling isn’t at all about the law.
Kacsmaryk got his lifetime appointment to the federal bench from then-President Donald Trump, whose conservative views include vehement opposition to abortion. Before his appointment, Kacsmaryk had criticized both the landmark Roe v. Wade decision establishing abortion rights as well as the Supreme Court’s legalization of same-sex marriage.
The organization leading the lawsuit Kacsmaryk ruled on, a right-wing group called the Alliance Defending Freedom, was also involved in the case that led to the overturning of Roe v. Wade.
Kacsmaryk might have been thinking he was doing his Republican brothers and sisters a political favor by shutting down access to mifepristone. He certainly was not.
The GOP’s dismal performance in the 2022 midterm elections should have provided ample proof that far-right politics — for instance, an insistence on pushing for abortion bans, even in cases of rape and incest — will only darken the party’s outlook for success in 2024.
For motivation, Republicans can look to the results of liberal Democrat Janet Protasiewicz’s trouncing of GOP opponent Dan Kelly in the race for a seat on the Wisconsin Supreme Court, a contest that ended the 15 years of conservative control over the court.
Abortion was a key issue in the race. Protasiewicz was staunchly pro-choice, while Kelly, a longtime conservative, was endorsed by Wisconsin anti-abortion groups. The lesson Republicans should glean from that race: As long as you acquiesce to your party’s far-right wing, you can expect more drubbings like the one in Wisconsin.
And yet, since Kacsmaryk’s ruling, Republicans have been conspicuously silent about the decision and its ramifications.
One of the only GOP voices of reason sounding the alarm was Rep. Nancy Mace, a South Carolina Republican who has come out against anti-abortion laws and has urged the FDA to ignore the Texas’ judge’s decision.
“If we can show that we care just a little bit, that we have some compassion, we can show the country our policies are reasonable, but because we keep going down these rabbit holes of extremism, we’re just going to keep losing,” Mace told The New York Times. “I’m beside myself that I’m the only person who takes this stance.”
Fellow Republicans should heed Mace, but they also should take notice of polling that indicates a majority of Americans accept abortion up to 15 weeks into a pregnancy, along with exceptions for rape, incest and the life and health of the mother.
They should also call out Kacsmaryk’s ruling for what it was — a poorly conceived overreach of judicial authority that unnecessarily impedes access to safe abortion medication. They would want to note that the ruling, if eventually upheld by the Supreme Court, would set a perilous precedent for FDA approval of other drugs, from new vaccines to groundbreaking treatment for Alzheimer’s disease.
If a federal judge can baselessly circumvent the science that backs mifepristone’s safety and efficacy, what’s to stop judicial attacks on other FDA approval decisions?
For the time being, much of Kacsmaryk’s ruling remains on hold, though the 5th Circuit Court of Appeals did validate his shutdown of the FDA’s 2016 expansion of access to mifepristone. Complicating the picture is a ruling by a federal judge in Washington state, issued the same day as Kacsmaryk’s decision, that bars the FDA from making any changes to mifepristone’s availability in 17 states where Democrats sought to protect access to the drug. Illinois is one of those states.
Regardless of what happens with these cases, the GOP’s head-in-the-sand reaction to Kacsmaryk’s ruling won’t be forgotten by voters — particularly suburbanites, moderate Republicans and independents. A continued embrace of Trumpian extremism will only further alienate the rational, more level-headed Republican voters that the GOP needs for success in 2024.
When it comes to Kacsmaryk’s blunder, GOP silence was far from golden. It was self-destruction.
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