This whole mifepristone business is just infuriating:
The federal judge who could upend access to a key abortion medication seemed open on Wednesday to the argument that the drug had not been properly vetted and could be unsafe — claims the Food and Drug Administration and leading health organizations strongly contest.
While the antiabortion group challenging the drug acknowledged there is no precedent for a court to order the suspension of a long-approved medication, U.S. District Judge Matthew Kacsmaryk questioned whether mifepristone has met the rigorous federal standard necessary to be prescribed to patients in the United States.
It's all such horseshit. Everyone knows mifepristone is safe. Everyone knows the FDA approval process in 2000 was fine. Everyone knows there's more than 20 years of real-world data to demonstrate mifepristone's safety. Everyone knows it's been approved for use throughout the entire world. Everyone knows why an obscure judge in a tiny jurisdiction in Texas is hearing this case. And everyone knows the case has nothing to do with safety anyway. It's just a way to make it harder to get an abortion.
But we're all forced to play make believe and pretend there's a real case here. And conservatives are all fine with this because, despite their incessant whining about "judicial wokeness" or whatever their latest complaint is, they don't care one whit about judicial process. They just want the result they want.
None of that matters, though. This Kacsmaryk dude is probably going to (a) ban mifepristone, (b) refuse to stay his ban while the case is appealed, and (c) get upheld by the 5th Circuit because they don't care about the law either. As for the Supreme Court, who knows anymore? Sam Alito promised us that courts couldn't interfere with abortion on a national basis, but he'll stroke his chin and solemnly pretend to believe this is really a question of whether the FDA overstepped its authority. And of course he'll agree that it did.
This business of fanatical Texas judges making policy for the whole country needs to stop. I don't know how to do that. But it's insane.
That a single federal judge can order a suspension of a drug nationwide shows a serious problem with how the judiciary works - and by extension, the legal profession, which is partly hierarchical, partly logical, and stochastic (much is based on precedent). But that's how common law works, in contrast to civil law.
So, should district court rulings against Trump's anti-Muslim immigration policies have applied only in that district?
So, should district court rulings against Trump's anti-Muslim immigration policies have applied only in that district?
Yes. We need various judicial reforms, and among these is narrowing the geographic reach of individual courts. In a sane system, pressing national matters could be/would be rapidly expedited to the appropriate level (I'd probably allow the DC Court of Appeals to issue national rulings of this sort, as well as, of course, the Supreme Court).
(Note to self: why do people think arguments such as these make for such compelling "gotchas." Sure, sometimes harmful policies that are regularly abused are used for good. Doesn't make the policy in question desirable, or merit its continuance).
Our federal judiciary is a seething, bloviated miasma of awfulness and dysfunction.
I think there's a pretty clear distinction to be made between blocking a recently enacted policy and reversing an approval that has stood for 20 yrs. (Especially when the plaintiffs are unable to produce any actual patients who have been harmed in that time.) It would be one thing if the plaintiffs were asking to just block the recently enacted FDA policy to allow abortion pills to be dispensed by pharmacies instead of just doctors. But they are trying to yank the whole approval.
If there is no statute of limitations then you can wait as long as you want to challenge the policy.
Are you saying that the courts should make up a statute of limitations when none exists?
The courts do take into account reliance interests, but except for companies who built factories to produce mifepristone it does not seem like that is an issue here.
It's not a statute of limitations per se. Merely that courts should take into account the disruption caused by reversing longstanding policy that businesses and individuals have relied on for longterm planning. The burden of proof for harms should be higher for an existing policy in that there should be a clear requirement for plaintiffs to show actual rather than theoretical harms. ie If the policy is actually harmful, there should be clear victims present because the policy has already been in effect. If a drug that has approval has caused substantial harms to patients, then of course those patients should be able to sue the FDA in an effort to get approval revoked if the FDA has otherwise not addressed their concerns.
Your question is imprecise and ill-posed, youth.[1] But I'll be happy to answer it to the best of my ability after I hear what you have to say on the subject.
[1] Please, please, tell me that somebody gets the reference. I know I'm old but I'd like to think that I'm not quite old enough to considered ancient.
Well, we have a federal system. The judge in question is a federal judge. If you want to limit applicability of decisions to a region, you need to go to state courts.
Then why are federal judges appointed on a district and circuit basis to begin with, if their authority isn't limited to that district and circuit?
This is a reasonable question and there is a lot of discussion about whether nationwide injunctions by any court but the Supreme Court are appropriate.
However, be aware that this is not a left/right issue. Nationwide injunctions were just as frustrating to the Trump Administration four years ago as they now are to the Biden Administration.
It makes sense to me that when the federal government is party to the litigation, the eventual judgment is binding on the federal government. This is not a process problem, it's a judge selection problem.
Certainly, the relevant rules could be changed to make judge shopping more difficult, if the Democrats could get control of the legislative process. It would also help if the people would stop electing Republican senate majorities and Republican presidents. The fact is that any legal system can be corrupted if the people in power want to corrupt it, and the Republicans clearly WANT to corrupt the legal system.
In a national case, it shouldn't be up to the plaintiff to pick the venue. Suing the FDA shouldn't be done in Texas, it should be done in DC.
Or alternately, put all the judges in a given district in one pool where every case is assigned randomly. That way, there is no judge-picking.
It’s end stage capitalism. An economy in denial about global warming from human endeavors. The common good is no longer our guiding principle, it’s greed.
A corrupted judicial system that can’t indict the prime movers of the overthrow of the government…….i.e. a government that can’t protect itself. Judges applying the “christian” equivalent of sharia religious beliefs to it’s rulings thereby behaving no different than judges in places like Iran, Pakistan and Saudi Arabia..
A House of Representatives run by and controlled instigators of Jan 6 and willing to take down the economy to protect the wealth of billionaires from taxation.
An armed unhappy electorate unwilling to be taxed for services.
Not good for the future.
"It’s end stage capitalism. . . . Judges applying the 'christian' equivalent of sharia religious beliefs"
You're kinda all over the map here. There's really nothing about "capitalism" let alone goofy invocation of "end stage capitalism" that has to do with the lack of judicial restraint by the 5th Circuit. Which is really the main problem here, and the root cause is some combination of increasing political polarization, the blue slip custom of the Senate, and a structural federal bias towards rural areas.
But, a more rational 5th Circuit could be counted upon to issue a stay of any sweeping ruling coming out of a podunk district court. Sadly, we don't have one.
I think he is saying it is end stage capitalism that we have a corrupt and out of countrol judiciary, a resurgence of the very worst kind of religiosity, etc.
Oh possibly. But people like to throw around terms like "end stage capitalism" in part because it lets them sound knowing and alerts everybody that they are the bluest of Team Blue without bothering to grapple with harder issues like whether or not they are describing effects or causes or even describing things accurately at all.
It also, like many adiagnostic pronouncements, normalizes avoiding trying to solve problems by softly characterising those problems as inevitable.
I getcha. Boy do I getcha on that one. I'm pretty sure everyone here knows by now just how much I detest semantic ploys. They're as obvious as they are pathetic and indicative of a poor work ethic to boot. My contempt falls equally on the just and the unjust for this one.
It’s not end-stage capitalism, it’s a political party that is barely hanging on, and can’t afford to lose any of the single-issue groups that support it: the gun nuts, the right-wing wealthy, the ‘religious’ right. It’s playing out in Israel, too, where Bibi has to pander to religious extremists to just barely assemble a coalition government.
Europe has been capitalist as long as the U.S., but most countries there have avoided this fate.
Well yes, of course. I'm constantly astouded by people who confuse these tactics for strength moves instead of what they really are, the moves of cornered rats who have absolutely no other moves left.
Europe, or at least England, has been capitalist for considerably longer than the US has existed.
That's sort of like saying guns can't be what's tearing apart America because some Europeans have firearms too.
It's not apples to apples. German unions get permanent seats on the board of directors for godsakes
They have a market economy. We have a market _society_
Well phrased. Capitalism can evolve along different paths.
These guys are going to push until someone pushes back effectively. No one is really pushing back effectively... the voters gave the House of rep to republicans. So this judge will do as he pleases. And we will all accept it because either we don't care at all or are unwilling to sacrifice to push back.
"Prudence, indeed will dictate that Governments long established should not be changed for light and transient causes; and accordingly all experience hath shewn, that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed."
The evils remain sufferable.
Until a dem state says NO! We will not obey...the beatings will continue....
States outside of the 5th Circuit Court's jurisdiction need to refuse to enforce it or abide by it until the Supreme Court actually holds a hearing on it. That's the only way this ends - Republicans are not going to reform the court system to prevent this stuff, and as long as there's no price to it why wouldn't they keep going back to this?
https://slate.com/news-and-politics/2023/02/texas-judge-abortion-case-actually-limited-mifepristone.html
Alternatively, we need to file rulings in rival circuit courts of appeals that contradict Kaczmaryk and force a conflict between them, so the Court actually has to review it. They still might turn crappy on it, but it would weaken the tactic.
Washington state AG Ron Ferguson leading a multi-state effort has filed suit with the FDA to protect the right to allow Mifepristone. Ferguson won 24 of the 25 cases he filed against the Trump administration.
How is it that a medical/scientific decision is even in the jurisdiction of some rando judge?
How do the plaintiffs, the groups of doctor activists etc, even have standing?
And, if making a drug available in a particular state somehow violates the "state's sovereignty" to ban all abortions, then what other "sovereignty" arguments can be made which clearly violate the "interstate commerce" clauses of the US Constitution? This one really is the camel's nose.
It's not. The question theoretically at hand is if the FDA followed proper administrative law procedure in approving the drug. That should absolutely be a justiciable question.
The main issue here is that the answer is clearly "yes, they did" but the judge is looking to get to "no, they didn't."
The Slate article Brett cited above asserts that the FDA’s process for rescinding approval is established in law, and cannot be overridden by a court. It involves a comment period and reviews (and appeal?); not an overnight decision.
Democrats need to be taking this game to the next level. They need to get the same type case before their judge-shopped court and have competing national injunctions released. That's the only way to fight a criminal justice system.
But we're all forced to play make believe and pretend there's a real case here.
What do you mean, "we"? No, you don't have to pretend this control-freak douchebag in a robe is anything other than a douchebag in a robe.
Other actors in the legal drama do. Some (but certainly not all) politicians do. But you do not, I do not, and telling people they're supposed to respect this shitbag revanchist is both incorrect and bad strategy.
Matt Kacsmaryk deserves scorn, ridicule and contempt. (Though not in his courtroom; respect the institution, if not the "judge".) Nothing more.
The real issue seems to be that this district (or portion of the north Texas district) has a single judge which means that for cases filed there there is a 100% chance this judge will be assigned the case. Maybe appoint a liberal judge to that district somehow?
It has never been about the unborn, or heartbeats, or brain activity or anything else; it is about punishing "sluts" that have sex without the intent of procreation. Once they get done with abortion, they will move on to contraceptives. [Edit: worth pointing out that Kacsmaryk could, and should, have dismissed this case for lack of standing. The "harm" caused is ludicrous and the remedy surely isn't a nation wide ban it would be making good on that harm]
almost cynical enough...
I live in Amarillo where Kacsmaryk sits. I think he attends the same Catholic church as my mother does. I believe the one dose abortion pill will remain legal no matter what Kacsmaryk decides, correct? Only mifepristone is being challenged. Misoprostol can still induce an abortion on it's own. I believe the FDA can also issue emergency approval for mifepristone if Kacsmaryk rules against the FDA while the FDA works to re-approve it, since mifepristone has already proven to be safe.
And tomorrows lawsuit goes after the other one.
Pingback: Bookmark of “Texas judge is close to banning medication-induced abortion” – Jayeless.net