Judge Matthew Kacsmaryk promised on Wednesday to issue his “order and opinion as soon as possible” following a hearing in the federal case that could decide the future of mifepristone, an abortion drug that’s been on the market for two decades. But the details of the hearing weren’t publicly available until Friday night, when a transcript was finally released to the media.
According to the transcript, Kacsmaryk—a conservative Trump appointee with ties to the anti-abortion industry—seemed open to arguments made by the rightwing organization Alliance Defending Freedom to restrict mifepristone. In a back-and-forth with Julie Straus Harris, the Justice Department attorney representing the Food and Drug Administration, Kacsmaryk asked about “abortionist/patient relationships,” a term common in anti-abortion rhetoric.
ADF senior counsel Erik Baptist told the court that the “only practical and reasonable way” forward in the case was to issue an preliminary injunction blocking mifepristone use nationally (or at least rescind the FDA’s approval of the drug). “The FDA’s unlawful actions have harmed women and girls for far too long,” Baptist said. When it concerns mifepristone, that is categorically untrue.
Medication abortion is safer than penicillin and Viagra, and, in the U.S. where maternal mortality rates are already higher than in other developed countries, it’s also safer than carrying a pregnancy to term. If Kacsmaryk issues an injunction to—at least temporarily—ban mifepristone, it would throw chaos into the abortion care arena, where patients are already dealing with a dwindling number of providers and safe states to access care. However, a number of providers have said they are able to switch to using only misoprostol, which is currently used in conjunction with mifepristone in medication abortions.
The ADF is backed by 22 Republican-led states, which filed an amicus brief in favor of “restor[ing] the proper balance of police power for the states to determine how best to protect the health and welfare of their citizens,” Baptist said. Unsurprisingly, this amicus brief is led by Mississippi, the state whose lawsuit led to the overturning of Roe v. Wade last year.
Straus Harris, the DOJ attorney, said that FDA approval of a drug does not require the state, or its citizens, to use it; it just means it is safe to use. “It does not, in that regard, set any national policy that affects their state powers. But the plaintiffs are the ones here who are trying to dictate national policy by asking this court to withdraw the agency’s determination as to safety and effectiveness,” Straus Harris said.
Baptist was unable to cite a similar circumstance where an approved drug was taken off the market after 20-plus years of effective use. In his closing comments, Baptist blamed the FDA’s supposed “stonewalling” of the people and organizations bringing the anti-mifepristone case that brought everyone to that Amarillo courtroom. (Again, that’s a lie: The ADF didn’t file suit until after Roe was overturned and also chose to do so in a district where it would be heard by a staunchly anti-abortion judge with a penchant for issuing nationwide rulings)
Looming over the entire proceeding was the lack of transparency. Federal courthouses largely restrict electronic usage in the courtroom—and the Amarillo courtroom that housed Wednesday’s argument was no exception. Wednesday’s hearing was simulcast at the federal courthouse in Dallas, but there was no overflow room at the Amarillo courthouse (despite significant interest from citizens and the press), nor was there a way for the public to listen to the audio feed of the hearing other than to be present in Dallas.
Kacsmaryk’s behavior in the week preceding the hearing exacerbated this otherwise standard opacity: During a call with lawyers for both sides on March 10, Kacsmaryk asked that the hearing not be put on the public docket, in order to avoid “any unnecessary circus-like atmosphere of what should be more of an appellate-style proceeding.”
The judge said there had been “death threats and harassing phone calls and voicemails” to the courthouse and its staff as a result of this case. “Because of limited security resources and staffing, I will ask that the parties avoid further publicizing the date of the hearing. This is not a gag order, but just a request for courtesy,” Kacsmaryk said, according to a transcript of the call published by TPM. “We want a fluid hearing with all parties being heard. I think less advertisement of this hearing is better.”
The public only found out about the upcoming hearing because reporters noticed missing numbers on the case docket. Following the fallout of that reporting and a letter from a coalition of media groups, the hearing was put on the public calendar. Subsequently, Fix the Court Executive Director Gabe Roth sent a letter requesting live audio of the hearing—which was obviously not granted.
At least three abortion providers—Whole Woman’s Health, Trust Women, and Hey Jane—have said they will continue with their usual two-pill medication abortion regimen (unless the FDA specifically directs them not to), regardless of how Kacsmaryk rules. But whether other providers will follow suit remains to be seen—as does what his decision will be. For now, we wait.
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