Texas Judge Doesn't Have Power to Ban Abortion Pills Nationwide, Say Legal Experts

(a lengthy, hopeful read)

Texas Judge Doesn’t Have Power to Ban Abortion Pills Nationwide, Say Legal Experts
3/3/2023 by Carrie N. Baker


Mifepristone (right) and Misoprostol (left), the two drugs used in a medication abortion. (Robyn Beck / AFP via Getty Images)

A recent Washington Post headline reads, “The Texas judge who could take down the abortion pill.” Another article from USA Today feverishly warns, “A Texas judge could soon force a major abortion pill off market nationwide.” A Denver Post headline ominously declares, “One Texas judge will decide fate of abortion pill used by millions of American women.” While media headlines across the country declare a Texas judge has the power to ban the abortion pills nationwide, three leading legal experts say he in fact does not have that power.

“Actually, one Texas judge is not the final decision-maker on medication abortion,” wrote David Cohen of Drexel Kline School of Law; Greer Donley at University of Pittsburgh School of Law; and Rachel Rebouche of Temple Law School in a recent Slate article. The case, Alliance for Hippocratic Medicine v. FDA, challenges the FDA approval of the abortion medication mifepristone. Abortion opponents argue the FDA unlawfully fast-tracked the approval of mifepristone in 2000 and did not have the required research to prove the safety of the drug under the labeled conditions of use. They also challenge the FDA’s recent decision to allow medical providers to mail abortion pills to their patients. Abortion opponents ask the court to rule that mailing abortion pills violates the 1873 Comstock Law, which banned sending obscene literature, contraceptives, abortifacients or any sexual information through U.S. mails.

The plaintiffs chose their judge by filing the case in a federal district with only one judge—Matthew J. Kacsmaryk—an anti-abortion extremist appointed by Donald Trump. For five years before becoming a federal judge, Kacsmaryk was deputy general counsel for First Liberty Institute, a Christian conservative legal organization that specializes in representing religious groups claiming they have experienced discrimination.

“Despite the barrage of predictions that this case could ban mifepristone and take it off the market, there are several basic legal principles suggesting that Judge Kacsmaryk’s power is limited and that a ruling for the plaintiffs will not necessarily change much at all with medication abortion,” wrote Cohen, Donley and Rebouche.

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https://msmagazine.com/2023/03/03/texas-judge-abortion-pill-ban-mifepristone/