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Conservative Texas District Court Won't Implement Anti-Judge Shopping Policy
The chief judge of the Northern District of Texas indicated the court will not follow new guidance, while a lower court judge called out a pro-business group's use of "judge shopping."
Mar 31, 2024
Right-wing groups will still be able to pick and choose the judges who hear their cases in one of the most conservative federal court districts in the United States, following a decision by the Northern District of Texas on Friday that goes against new anti-"judge shopping" guidance.
Chief U.S. District Judge David Godbey of the Northern District wrote in a letter to Senate Majority Leader Chuck Schumer that the court would not abide by new guidance from the Judicial Conference, which said earlier this month that the court system should randomly assign lawsuits to any judge throughout the district where they're filed.
"The consensus was not to make any change to our case assignment process at this time," wrote Godbey, an appointee of former President George W. Bush.
The policy, announced on March 12, would require lawsuits that challenge federal or state laws to be assigned to a judge randomly throughout a federal district rather than staying in the specific smaller division where they were initially filed, a practice known as "judge shopping" or "venue shopping."
The practice has garnered scrutiny in recent months as right-wing groups have filed numerous lawsuits in the court of Judge Matthew Kacsmaryk, who presides over a federal court in Amarillo, Texas—also in the state's Northern District.
Kacsmaryk, an appointee of former President Donald Trump, ruled last year that the Food and Drug Administration's approval of mifepristone, a drug used for medication abortion, should be suspended. The U.S. Supreme Court heard arguments in an appeal last week, and the justices signaled that they were unlikely to impose new restrictions on the medication.
After Republican lawmakers wrote to federal judges telling them to disregard the Judicial Conference's guidance—which the body noted is discretionary—Schumer called on the courts to apply the new reforms to stop "extremists" from handpicking judges.
Godbey's letter signaled that the court will continue allowing conservative plaintiffs to select the venue where their cases are heard.
Judiciary observers noted that another judge in the Northern District—Mark Pittman in the Fort Worth division—suggested that chief judges may not have the final word on whether judge shopping continues to be tolerated.
Pittman, who was also appointed by Trump, ruled that a case filed by the U.S. Chamber of Commerce and other banking industry groups against the Consumer Financial Protection Bureau (CFPB) should be transferred to a federal court in Washington, D.C.
The judge agreed with the CFPB, which had argued the banking lobby had filed its lawsuit over the bureau's slashing of credit card late fees in the Northern District of Texas in order to secure a favorable ruling.
"Venue is not a continental breakfast; you cannot pick and choose on a plaintiff's whim where and how a lawsuit is filed," said Pittman. "Federal courts have consistently cautioned against such behavior."
"Even the judges you least expect," said David Dayen of The American Prospect, "are pissed at being pawns in a conservative game."
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Abortion Rights and the Cold, Dead Hand of Anthony Comstock
Anti-abortion activists want to use the Comstock Act to ban all abortions in the nation, and most birth control pills and devices as a bonus.
Mar 27, 2024
Yesterday’s Supreme Court session was a loud and persistent warning: America needs to pay attention.
During oral arguments, the Comstock Act was invoked repeatedly by Justice Samuel Alito, Justice Clarence Thomas, and Erin Hawley, the wife of Republican Senator Josh Hawley, who was arguing before the court that the abortion drug, Mifepristone, should be banned nationwide.
Now that it’s fairly clear the “sad doctors” argument before the court yesterday was so pathetically weak they can’t use it to ban Mifepristone, anti-abortion activists are talking about finding a case they can push up to the court next year that will allow it to ban all abortions in the nation, and most birth control pills and devices as a bonus.
How do they plan to do it? With the Comstock Act. You could see and hear the set-up of this future court case in Yesterday’s arguments.
Justice Sam Alito said:
This [Comstock Act] is a prominent provision. It’s not some obscure subsection of a complicated, obscure law. Everybody in this field knew about it.
Erin Hawley was emphatic:
We don’t think that there’s any case of this court that empowers FDA to ignore other federal law. The Comstock Act says that drugs should not be mailed… either through the mail or through common carriers.
And Clarence Thomas laid out the possibility of future litigation when he essentially threatened the lawyer for Danco Laboratories, the manufacturer of Mifepristone:
“How do you respond to an argument that mailing your product and advertising it would violate the Comstock Act?” He went onto note that the law “is fairly broad, and it specifically covers drugs such as yours.”
In other words, they want the act enforced today.
Bloomberg news laid it out yesterday:
“Do we think the Supreme Court majority is going to rule on the Comstock Act in this case? The answer to that is no,” said Mary Ziegler, a law professor at the University of California at Davis who specializes in reproductive rights. “Do we think that the Comstock Act is going to come up again at some point in the future? The answer to that is definitely.”
So, what the heck is the Comstock Act and why are Republicans trying to revive it before the Supreme Court and in threatening letters to pharmacy chains?
You’ve probably never heard of Anthony Comstock, a Civil War Union soldier and New York postmaster, who died in 1915. You need to learn about him and his legacy, however, as his long fingers are about to reach up out of the grave and wrap themselves around the necks of every American woman of childbearing years.
Anthony Comstock was a mama’s boy who hated sex. His mother died when he was 10 years old, and the shock apparently never left him; women who didn’t live up to her ideal were his open and declared enemies, as were pornography, masturbation, and abortion. He was so ignorant of sex and reproduction that he believed a visible human-like fetus developed “within seconds” of sexual intercourse.
If Hawley’s interpretation is ultimately adopted by the Supreme Court in another case more specifically tailored to it next year—which the anti-abortion movement is working on as you’re reading these words—all abortions in the United States would be ended when drugs and suction and surgical devices designed specifically for the procedure can no longer be shipped to hospitals, clinics, or physicians’ offices.
Comstock spent decades scouring the country collecting pornography, which he enthusiastically shared with men in Congress, and harassing “loose women.” For example, when he visited a belly-dancing show (then a new craze) in Chicago at the Cairo Theatre during the World’s Fair of 1893, he demanded the show be shut down.
As Amy Sohn, who wrote a brilliant Comstock biography titled The Man Who Hated Women, noted:
Despite national controversy and Comstock’s intervention, ultimately the only alteration made to the fair’s belly dancing was costuming: The dancers swapped their gauze blouses for thin woolen undershirts. The vice hunter had lost in Chicago. But he would not forget the dancers, and would have four of them arrested and fined when they came to New York that winter. New York, after all, was Comstockland.
Comstock lobbied for and shepherded through Congress a law passed on March 3, 1873 titled “An Act for the Suppression of Trade in, and Circulation of, Obscene Literature and Articles of Immoral Use.” Today we refer to it as the Comstock Act.
It’s language with regard to abortion is not at all ambiguous:
Every obscene, lewd, lascivious, indecent, filthy, or vile article, matter, thing, device, or substance… designed, adapted, or intended for producing abortion, or for any indecent or immoral use; and
Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose; and
Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and
Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and
Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing—
Is declared to be nonmailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.
The penalty is also not ambiguous. Persons mailing information about abortion, or drugs or devices to produce an abortion:
S]hall be fined under this title or imprisoned not more than five years, or both, for the first such offense, and shall be fined under this title or imprisoned not more than ten years, or both, for each such offense thereafter.
The Biden administration argues that the Comstock Act of 1873 was set aside almost a century ago.
And, indeed, in 1930, the Appeals Court for the Second Circuit ruled in Youngs Rubber Corp. v. C.I. Lee & Co that the law couldn’t apply to things sent through the mail that are legal, even if they were illegal at the time of the passage of the Comstock Act. (The case involved condoms manufactured by Youngs Rubber.)
“Such a construction,” the court wrote, “would prevent mailing to or by a physician of any drug or mechanical device ‘adapted’ for contraceptive or abortifacient uses, although the physician desired to use or to prescribe it for proper medical purposes.”
The law has been amended by Congress four times (in 1955, 1958, 1971, and 1994), but the language above was never struck because legislators figured the 1930 appeals court’s ruling rendered it nugatory.
But don’t tell that to Trump’s appointee, Texas District Judge Matthew Kacsmaryk of Amarillo, who ruled last year that Mifipristone was to be banned nationwide: He based a large part of his decision on the plain language of the Comstock Act.
And don’t tell it to the three right-wing judges who heard the appeal of Kacsmaryk’s decision before the Fifth Circuit Court of Appeals on its way to SCOTUS.
When the Biden administration’s attorney argued before the Fifth Circuit that Kacsmaryk’s decision, based largely on the Comstock Act, was “unprecedented,” Circuit Judge James Ho—also a Trump appointee, who personally swore his good friend Kacsmaryk into his office, and whose wife is a paid anti-abortion activist—interrupted her with a curt snap, saying:
I guess I’m just wondering why not just focus on the facts of this case rather than have this sort of “FDA can do no wrong” theme.
That appeals court, made up of a George W. Bush appointee and two Trump appointees, earlier had ruled in their preliminary finding to hear the case that they disagreed with the Biden administration’s assertion that, to quote the three judges, “the [Comstock] law does not mean what it says it means.”
When the Biden interpretation of the Comstock Act was brought up in oral arguments, the Bush appointee, Judge Jennifer Walker Elrod, said there is “some disagreement” about whether previous court rulings actually invalidated the law. After all, it’s never been adjudicated before the Supreme Court and is still on the books.
This battle promises to be long and hard-fought, and the only solution will be for Congress to take this gun out of Republicans’ hands by overturning the Comstock Act itself.
Republican members of Congress agree, and want the Comstock Act enforced nationwide now. They think they don’t even need a ruling from the Supreme Court: They just need a Republican president.
In a letter sent to CVS (among other pharmacy chains), Mississippi Republican Senator Cindy Hyde-Smith and eight other Republican senators (Lankford, Daines, Braun, Rubio, Marshall, Risch, Crapo and Blackburn) wrote that the Biden interpretation (and that of Congress in 1955, 1958, 1971, and 1994) is wrong.
They explicitly asserted that the Comstock Act is still in effect and they want it enforced:
“We write to express our support and agreement with 21 [Republican] state attorneys general,” they wrote “who have reminded you that Federal law in 18 U.S.C. 1461-1462 [the Comstock Act] criminalizes nationwide using the mail, or interstate shipment by any express company or common carrier, to send or receive any drug that is ‘designed, adapted, or intended for producing abortion.’”
The 1930 court ruling that lawmakers and judges had, for over 90 years, believed only applied the Comstock Act to items that were illegal (like child porn), Senator Hide-Smith wrote:
[D]oes not protect CVS or any other individual or entity from being prosecuted within the five-year statute of limitations for the illegal mailing or interstate shipment of abortion drugs… even for conduct that occurs today.
Keep in mind, under the plain language of the Comstock Act this could also apply to birth control pills, IUDs, and other things used to prevent pregnancy. And, of course, pornography.
The lawyer for Republicans defending Kacsmaryk’s ruling, Erin Hawley, went so far as to assert before the Fifth Circuit Court of Appeals that even physicians and pharmacies shouldn’t be able to receive Mifipristone or other drugs that could produce an abortion via the mail, FedEx, or UPS:
What the Comstock law says is that it is improper to mail things that induce or cause abortions, which is precisely the action the FDA took in 2021 when it permitted the mailing of abortion drugs.
If Hawley’s interpretation is ultimately adopted by the Supreme Court in another case more specifically tailored to it next year—which the anti-abortion movement is working on as you’re reading these words—all abortions in the United States would be ended when drugs and suction and surgical devices designed specifically for the procedure can no longer be shipped to hospitals, clinics, or physicians’ offices.
This is no idle threat.
As Washington Post reporter Dan Diamond wrote for his Substack newsletter, anti-abortion activist Mark Lee Dickson, who’s helped several cities around the country put into law local versions of the Comstock Act, told him:
If a future president were to enforce these federal statutes, then they could shut down every abortion facility in America.
This is the specific goal of these mostly Catholic religious fanatics: to completely outlaw all abortion and radically restrict access to birth control. And they are not going to give up just because it looks like the Supreme Court isn’t going to ban Mifepristone this year.
Such a case would, based on what they said yesterday, have Republicans in the Senate, Clarence Thomas, and Sam Alito gleefully rubbing their hands in anticipation.
This battle promises to be long and hard-fought, and the only solution will be for Congress to take this gun out of Republicans’ hands by overturning the Comstock Act itself.
And that’s unlikely to happen unless or until Democrats take back the House, hold the White House, and gain a filibuster-proof majority in the Senate (or kill the filibuster).
The stakes this fall couldn’t be higher.
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Abortion Defenders Decry 'Baseless' Attack on Mifepristone as SCOTUS Hears Case
"The overturn of Roe was just the first step in the far right's relentless campaign to restrict women's reproductive freedom," said one advocate. "We always knew they would come for medication abortion, too."
Mar 26, 2024
As the U.S. Supreme Court heard oral arguments Tuesday in a case brought by right-wing activists seeking to sharply limit access to a commonly used abortion pill, reproductive rights advocates renewed warnings that Republicans' endgame isn't just making abortion a states' rights issue, but rather forcing a nationwide ban on all forms of the medical procedure.
The high court justices—including six conservatives, half of them appointed by former President Donald Trump, the presumptive 2024 GOP presidential nominee—are hearing oral arguments in Food and Drug Administration v. Alliance for Hippocratic Medicine, a case brought by the right-wing Alliance Defending Freedom on behalf of anti-abortion doctors. The case involves the abortion pill known by the generic name mifepristone, which was first approved by the FDA in 2000 as part of a two-drug protocol to terminate early-stage pregnancies.
"If the Supreme Court refuses to follow the evidence and imposes medically unnecessary restrictions on mifepristone, it will be just another stepping stone in the anti-abortion movement's end goal of a nationwide ban on abortion."
"Mifepristone has been used by millions of women over the last 20 years, and its safety and effectiveness have been well-documented," said Jamila Taylor, president and CEO of the Institute for Women's Policy Research. "The drug has taken on even greater importance for women's health since the Supreme Court overturned Roe v. Wade, and the far right has moved to block women's access to healthcare at every turn."
In a dubious practice known as "judge shopping," the plaintiffs filed their complaint in Amarillo, Texas, where Matthew Kacsmaryk, the sole federal district judge and a Trump appointee, ruled last April that the FDA's approval of mifepristone was illegal. Shortly after Kacsmaryk's ruling, a federal judge in Washington state issued a contradictory decision that blocked the FDA from removing mifepristone from the market. The U.S. Department of Justice subsequently appealed Kacsmaryk's ruling.
Later in April 2023, the Supreme Court issued a temporary order that allowed mifepristone to remain widely available while legal challenges continued. A three-judge panel of the right-wing 5th U.S. Circuit Court of Appeals ruled last August that the FDA's 2016 move to allow mifepristone to be taken later in pregnancy, mailed directly to patients, and prescribed by healthcare professionals other than doctors, was likely illegal. However, the court also allowed the pill to remain on the market pending the outcome of litigation.
In an analysis of the case published Tuesday, jurist Amy Howe explained:
There are three separate questions before the justices on Tuesday. The first one is whether the challengers have a legal right to sue, known as standing, at all. The FDA maintains that they do not, because the individual doctors do not prescribe mifepristone and are not obligated to do anything as a result of the FDA's decision to allow other doctors to prescribe the drug.
The court of appeals held that the medical groups have standing because of the prospect that one of the groups' members might have to treat women who had been prescribed mifepristone and then suffered complications—which, the FDA stresses, are "exceedingly rare"—requiring emergency care. But the correct test, the FDA and [mifepristone maker] Danco maintain, is not whether the groups' members will suffer a possible injury, but an imminent injury.
Destiny Lopez, acting co-CEO of the Guttmacher Institute, called the plaintiffs' claims "baseless."
"If the Supreme Court refuses to follow the evidence and imposes medically unnecessary restrictions on mifepristone, it will be just another stepping stone in the anti-abortion movement's end goal of a nationwide ban on abortion," she said on Tuesday. "As the court weighs its decision, let's be clear that the only outcome that respects facts and science is maintaining full access to mifepristone."
As more than 20 states have banned or restricted abortion since the Supreme Court's June 2022 Dobbs v. Jackson Women's Health Organization ruling overturned Roe v. Wade and voided half a century of federal abortion rights, people have increasingly turned to medication abortion to terminate unwanted pregnancies. And while Republicans have often claimed that overturning Roe was not meant to ban all abortions but merely to leave the issue up to the states, GOP-authored forced pregnancy bills and statements by Republican lawmakers and candidates including Trump—who last week endorsed a 15-week national ban—belie conservatives' goal of nationwide prohibition.
Project 2025, a coalition of more than 100 right-wing groups including Susan B. Anthony Pro-Life America and other anti-abortion organizations, wants to require the FDA to ban drugs used for medication abortions, protect employers who refuse to include contraceptive coverage in insurance plans, and increase surveillance of abortion and maternal mortality reporting. The coalition is reportedly drafting executive orders through which Trump, if reelected, could roll back Biden administration policies aimed at protecting and expanding abortion access.
"The overturn of Roe was just the first step in the far right's relentless campaign to restrict women's reproductive freedom. We always knew they would come for medication abortion, too," Taylor said. "But conservatives seeking to block access to mifepristone are not concerned about women's safety; they want to block all abortion options for women and prevent them from making their own reproductive decisions, even in their own homes."
Right-wing groups including the Heritage Foundation have been pressing Trump to invoke the Comstock laws, a series of anti-obscenity statutes passed in 1873 during the Ulysses S. Grant administration. One of the laws outlawed using the U.S. Postal Service to send contraceptives and punished offenders with up to five years' hard labor. Named after Victorian-era anti-vice crusader and U.S. postal inspector Anthony Comstock, the laws were condemned by progressives of the day, with one syndicated newspaper editorial accusing Comstock of striking "a dastard's blow at liberty and law in the United States."
Slate senior writer Mark Joseph Stern said Tuesday that far-right Justices Clarence Thomas and Samuel Alito—who wrote the majority opinion in Dobbs—"are clearly eager to revive the Comstock Act as a nationwide ban on medication abortion, and maybe procedural abortion, too."
"That would subject abortion providers in all 50 states to prosecution and imprisonment," he added. "No congressional action needed."
Progressive U.S. lawmakers joined reproductive rights advocates in rallying outside the Supreme Court on Tuesday.
"Mifepristone is safe and effective and has been used in our country for decades," said Rep. Rashida Tlaib (D-Mich.). "These far-right justices need to stop legislating from the bench."
Rep. Ayanna Pressley (D-Mass.) asserted that "medication abortion is safe, effective, and routine healthcare."
"Over half of U.S. abortions are done this way and we have decades of scientific evidence to back up its safety," she added. "SCOTUS must protect access to mifepristone and we must affirm abortion care as the human right that it is."
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Shopping for Judges by Right-Wing Crusaders Undermines Public Trust
Random case assignment serves as a bulwark against the undue influence of political agendas on our courts.
Mar 23, 2024
If you are a right-wing activist looking to persuade a federal judge to impose your views on the country, what do you do? For starters, you go shopping.
Judge shopping, that is. Head to the courthouse in Amarillo, Texas. No matter if you aren’t from there. There is precisely one federal district judge in Amarillo. His name is Matthew Kacsmaryk. And odds are high that he will issue a ruling just as you seek, one that imposes a highly conservative, indeed theocratic, worldview. He might even issue an injunction that purports to cover the entire country.
That’s what happened a year ago when activists pulled up to Amarillo and won a ruling by Kacsmaryk effectively banning mifepristone, a medication used for more than half of all abortions in the United States. The activists knew, as the judge’s sister told reporters, that he had made it his mission to end all abortions in the United States. (He has called homosexuality “disordered” for good measure.) It showed the power of one judge with a gavel and a grudge to impose his views on tens of millions of citizens.
It will crush confidence in the rule of law if judges are seen as partisan or political actors.
This was too much even for the reactionary Fifth Circuit Court of Appeals, which stayed some of the more extreme parts of Kacsmaryk’s order while the case was appealed to the Supreme Court. Later this year, the court will hear this case. However it turns out, it was an unsettling reminder of the vulnerability of our legal system to judge shopping.
All states have at least one federal district court, but these are often broken into smaller divisions that usually automatically assign cases among one or two judges. Litigants can strategically file in a division with an ideologically friendly judge to boost their odds of a favorable ruling. That matters most when a case is heavy with political or ideological significance. Picking the right law is great; picking the right judge can be even better.
All this is magnified by the weird fact that the Supreme Court has never ruled on whether a single judge can issue a nationwide injunction stopping conduct or barring government from acting. Liberals and conservatives alike have used this for years.
Last fall, the Brennan Center urged the Judicial Conference, a panel of judges that sets policies for the federal judiciary, to address this problem. In a meeting last week, the conference took a welcome if tentative step in the right direction. It announced a policy to encourage random assignment of cases with a statewide or nationwide impact. That would lessen the odds that filing a case in a given division would give a plaintiff their judge of choice. The policy makes sense. But the guidance is nonbinding, and it’s unclear whether districts will follow it. Still, it is a promising sign that federal judicial leaders recognize judge shopping as a threat to public trust. Soon we will learn if their gentle encouragement leads to action. I’m not holding my breath.
The stakes could not be higher. Yesterday we got a glimpse of why this matters so much. Murthy v. Missouri is part of the drive to clear the path for disinformation in the 2024 election. A judge had barred the federal government from even talking to social media platforms to discourage disinformation on Covid-19 or voting. Republican state attorneys general brought the case in a division where they were all but guaranteed to get Trump-appointed Judge Terry Doughty. Last July, he ordered federal officials to stop communicating with social media companies about false content, removing a vital check on the rampant election falsehoods that continue to circulate online.
A Supreme Court ruling on the Murthy case will come in the next few months, but as my colleagues Lawrence Norden and Gowri Ramachandran have pointed out, the trial judge’s ruling has already wreaked significant damage. Government agencies simply stopped talking with Facebook, YouTube, and other platforms. Private groups and scholars pulled back. There is a wide-open terrain for the Big Lie in the 2024 election.
Judge shopping undermines public trust. Opposing it should be a nonpartisan cause. Instead, the new policy—mushy as it is—faced a sharp partisan backlash. Republican senators sent letters to about a dozen federal district court chief judges advising them to disregard the policy change. They accused the conference of involving itself with partisan battles, even though 15 of the conference’s 26 current members were appointed by President George W. Bush.
Public trust in the Supreme Court has plummeted to the lowest level ever recorded in polls. Lower courts may not be far behind. It will crush confidence in the rule of law if judges are seen as partisan or political actors. Random case assignment serves as a bulwark against the undue influence of political agendas on our courts. So one or maybe two cheers for the new policy. Next, the Judicial Conference should cement this policy in the Federal Rules of Civil Procedure. The window for judge shopping should be slammed shut.
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Post-Dobbs Abortion Pill Surge Highlights Stakes of Looming Supreme Court Case
"Next week as we hear oral arguments in the FDA v. Alliance for Hippocratic Medicine case, remember who will be impacted," said one group.
Mar 20, 2024
As abortion bans and restrictions have taken hold in at least 21 states since the right-wing majority on the U.S. Supreme Court voted to overturn Roe v. Wade nearly two years ago, Americans' reliance on medication abortion became increasingly clear—with the use of abortion pills reported in 63% of all abortions that took place within the formal healthcare system in 2023.
Medication abortion represented 53% of all abortions in the U.S. in 2020, signifying a substantial increase since the court ruled in Dobbs v. Jackson Women's Health Organization.
The Guttmacher Institute released the results of its Monthly Abortion Provision Study on Tuesday, a week before the Supreme Court is set to hear oral arguments in Food and Drug Administration, et al., Applicants v. Alliance For Hippocratic Medicine, et al., a case brought by the right-wing Alliance Defending Freedom on behalf of anti-abortion doctors.
The group filed the case aiming to revoke the FDA's approval of mifepristone, one of two drugs used in medication abortions, more than two decades after it was approved following years of research.
"As our latest data emphasize, more than 3 out of 5 abortion patients in the United States use medication abortion," said Amy Friedrich-Karnik, director of federal policy for Guttmacher. "Reinstating outdated and medically unnecessary restrictions on the provision of mifepristone would negatively impact people's lives and decrease abortion access across the country."
Right-wing Judge Matthew Kacsmaryk ruled last year in the U.S. District Court for the Northern District of Texas that mifepristone's registration should be invalidated, a decision that was quickly put on hold by the Supreme Court.
Next week, the Supreme Court will hear the U.S. Department of Justice's appeal of Kacsmaryk's decision with a focus on two issues: whether the Alliance of Hippocratic Medicine has legal standing and whether the FDA did adequate research before it expanded access to mifepristone in 2016 and 2021. A ruling is expected this summer.
Guttmacher's research showed a 10% increase in all abortions in the U.S. between 2020-23, with a rate of 15.7 abortions per 1,000 women of reproductive age last year—the highest rate and number of abortions in more than a decade.
States without total abortion bans saw a 25% rise in abortion care compared to 2020, and the increase was even sharper in states bordering those with bans—37% between 2020-23.
"Next week as we hear oral arguments in the FDA v. Alliance for Hippocratic Medicine case, remember who will be impacted," said Whole Women's Health, which runs reproductive health clinics in several states.
Rachel Jones, principal research scientist for Guttmacher, said the group's findings show that "as abortion restrictions proliferate post-Dobbs, medication abortion may be the most viable option—or the only option—for some people, even if they would have preferred in-person procedural care."
Reproductive rights advocates and medical experts including the American College of Obstetricians and Gynecologists have long warned that restrictions on mifepristone—adopted by the FDA under pressure from the pro-forced pregnancy movement—are medically unnecessary and aim only to stop people from receiving care.
Advocates fear that the Supreme Court could rule that the FDA's 2021 decision to allow mifepristone to be dispensed via telemedicine and the mail violates the Comstock Act, a law that dates back to 1873 and prohibited the distribution of "obscene" materials through the mail.
"The modern anti-abortion movement wants to reinvent the Comstock Act as an abortion ban," University of California, Davis, law professor Mary Ziegler told Ms. magazine on Tuesday.
If healthcare providers can no longer dispense mifepristone via telemedicine, people seeking abortions would be forced to go in person to get care, "exposing them not only to delays and increased costs but also to harassment, threats, and other types of violence from anti-abortion extremism, which has increased dramatically since the fall of Roe," reported Ms.
Ahead of the Supreme Court's hearing in the Alliance for Hippocratic Medicine's "groundless case challenging FDA approval of mifepristone," said Guttmacher, "mifepristone is available and the facts remain clear: medication abortion is safe, effective, widely used, and critical to bodily autonomy for all."
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GOP Leaders Push Judiciary to Ignore Policy Designed to End 'Judge Shopping'
"Look who just came out and said it: We're against the fair and impartial administration of justice," said one civil rights attorney.
Mar 15, 2024
Republican lawmakers on Thursday signaled they want to stop judges from following a new judicial policy unveiled this week that's aimed at curbing what one journalist called "one of the most outrageous aspects of the American legal system."
In a letter to the chief justices of U.S. district courts across the country on a new rule regarding the practice of "judge shopping," Senate Minority Leader Mitch McConnell (R-Ky.) joined Sens. John Cornyn (R-Texas) and Thom Tillis (R-N.C.) in advising the judges that "Judicial Conference policy is not legislation."
The policy in question, approved by the Judicial Conference on Tuesday, would prevent plaintiffs from filing lawsuits that seek to block state or federal actions in single-judge divisions—a practice that right-wing litigants have been criticized for using in order to secure favorable rulings. Instead, the court system would randomly assign lawsuits to any judge throughout the district where they were filed.
The practice of judge shopping, wrote Ian Millhiser at Vox on Tuesday, "turned Matthew Kacsmaryk, an obscure advocate on the Christian right appointed by former President Donald Trump to the Northern District of Texas, into one of the most powerful government officials in the entire country" in recent years, due to the judge's status as the only federal trial judge based in Amarillo, Texas.
Attorneys representing right-wing causes have filed numerous lawsuits in Kacsmaryk's court, including one in which a parent sued the government over Title X funding of family planning clinics and a case challenging federal approval of mifepristone, which is used in medication abortion.
Senate Democrats last year wrote to the Judicial Conference and called on the body to "address this problem and restore fairness to our federal judiciary."
In an attempt to ensure the judicial system continues supporting judge shopping, the Republican leaders told chief justices: "It is your job to manage the caseload of your court according to the dictates of local circumstances and convention. We therefore hope and expect that you will continue to do what is in the interest of justice for litigants in your jurisdiction without regard to partisan battles in Washington, D.C."
The letter amounted to an admission that the GOP is "against the fair and impartial administration of justice," said civil rights attorney Leslie Proll.
At The American Prospect, Ryan Cooper wrote Friday that judge shopping is "offensive" to "basic principles of the rule of law and democratic values."
"Government is supposed to be based on the consent of the governed, and the principal focus of the judiciary should be ensuring the law is applied in a consistent and coherent fashion rather than acting as an unelected legislature," wrote Cooper. "That holds double when it comes to any one of 677 district court judges, who have no business whatsoever dictating terms to the people as a whole. But with judge shopping, a random handful of extremists can file a lawsuit based on crackpot nonsense or actual lies, present their case to a carefully chosen friendly judge who will automatically rule in their favor, and seize control of some national policy."
Sen. Dick Durbin (D-Ill.), who chairs the Senate Judiciary Committee, told Bloomberg Law Thursday that the Judicial Conference had acted "to curb the ability of MAGA extremists to handpick their preferred Trump-appointed judge."
"America has seen what happens when MAGA Republicans use the courts to advance their unpopular agenda because they cannot prevail in the court of public opinion—just look to recent mifepristone cases in Texas. Preventing this abuse of the system will help restore the public's trust in our court system and strengthen our democracy."
Judicial advocacy group Demand Justice said the reform introduced by the Judicial Conference is "long overdue."
"We will need oversight and reform from Congress to restore legitimacy and balance to our courts," said the group.
Democratic senators including Sens. Mazie Hirono of Hawaii and Ron Wyden of Oregon have proposed legislation to prevent judge shopping. The Republicans noted in their letter Thursday that Congress rejected a bill in 1999 that would have required cases to be randomly assigned.
Cooper called the Judicial Conference's announcement "a highly welcome reform that should reduce the amount of judicial overreach in this country," but also "an indicator of just how broken the other two branches of government have become, particularly Congress."
“Ultimately, we can't expect the judiciary to truly regulate itself," wrote Cooper. "As Thomas Jefferson once wrote, 'Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps.' When feral judges arrogate the powers of Congress to themselves, the legislature is supposed to slap them down. Until it does, the problem of judicial tyranny will remain."
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Appeals Court Upholds Restrictions on Mifepristone—But Abortion Pill Remains Available for Now
"Today's decision is a likely first step toward a massive blow to reproductive rights in the United States—and a stark reminder that our courts have been hijacked by Republican extremists," said one abortion rights advocate.
Aug 16, 2023
A federal appellate court on Wednesday upheld portions of a ruling restricting access to the abortion pill mifepristone, although the drug will remain available pending the outcome of ongoing litigation.
A three-judge panel of the right-wing 5th U.S. Circuit Court of Appeals ruled that mifepristone can remain on the market, while finding that the Food and Drug Administration's (FDA) 2016 move to allow the pill to be taken later in pregnancy, mailed directly to patients, and prescribed by healthcare professionals other than doctors was likely illegal.
The ruling—which the Department of Justice (DOJ) said it will appeal to the U.S. Supreme Court—was condemned by abortion rights advocates.
"Ignoring the facts and the expert scientific judgment of the country's top doctors is judicial activism of the highest order."
"This entirely illegitimate decision could cost lives all across the country," Rachel O'Leary Carmona, executive director of Women's March, said in a statement. "The conservative three-judge panel that is the 5th Circuit Court is just another agent in extremist Republicans' plan to enact a full nationwide abortion ban and to cut back access to critical reproductive healthcare."
"To be clear: Mifepristone is an FDA-approved medication that has been proven safe and effective for women in all walks of life for over two decades," she added. "It has a safety record of over 99%—more than that of Tylenol or Viagra."
Following the Supreme Court's cancellation last year of half a century of constitutional abortion rights in Dobbs v. Jackson Women's Health Organization, U.S. District Judge Matthew Kacsmaryk in Texas ruled this April in Alliance for Hippocratic Medicine v. FDA that the agency's approval of mifepristone in 2000 was illegal.
The DOJ subsequently appealed Kacsmaryk's decision to the 5th Circuit. Later in April, the Supreme Court granted a request by the Biden administration to continue allowing widespread access to mifepristone pending the outcome of the 5th Circuit case.
"Today's decision by the 5th Circuit to partially reaffirm Judge Kacsmaryk's ruling attempting to yank mifepristone off the shelves is an outrageous attack on the reproductive freedom and bodily autonomy of women and pregnant people in the United States," Catholics for Choice president Jamie Manson said in a statement.
"A mountain of scientific evidence demonstrates that mifepristone—which, when taken in combination with misoprostol, accounts for most of the abortions in the United States—is a safe and highly effective method of terminating an early pregnancy," Manson added. "Ignoring the facts and the expert scientific judgment of the country's top doctors is judicial activism of the highest order."
Nicole Regalado, vice president of campaigns at UltraViolet, warned that "if the Supreme Court refuses to take this case, or affirms the 5th Circuit's decision, it will severely restrict access to mifepristone nationwide."
"Today's decision is a likely first step toward a massive blow to reproductive rights in the United States—and a stark reminder that our courts have been hijacked by Republican extremists who will stop at nothing to advance their sexist agenda," she continued.
"In times like these, every single one of us must make a choice: Will we stand by and let extremist judges impose their sexist agendas on millions of people, or step up to protect the rights of women and pregnant people to make decisions about their bodies?" Regalado added. "History will remember which side we choose."
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'Not Out of the Woods Yet': Supreme Court Maintains Abortion Pill Access—For Now
"We shouldn't even be here," said one advocate. "This case should have been thrown out way before it got to the Supreme Court."
Apr 21, 2023
In its first major abortion decision since reversing Roe v. Wade last year, the U.S. Supreme Court on Friday granted the Biden administration's request to continue allowing widespread access to the medication mifepristone while a legal battle plays out.
"This is very welcome news, but it's frightening to think that Americans came within hours of losing access to a medication that is used in most abortions in this country and has been used for decades by millions of people to safely end a pregnancy or treat a miscarriage," said Jennifer Dalven, director of the ACLU's Reproductive Freedom Project, in response to the order. "Patients shouldn't have to monitor Twitter to see whether they can get the care they need."
"Make no mistake, we aren't out of the woods by any means," Dalven stressed. "This case, which should have been laughed out of court from the very start, will continue on. And as this baseless lawsuit shows, extremists will use every trick in the book to try to ban abortion nationwide."
Nancy Northup, president and CEO of the Center for Reproductive Rights, similarly declared that the decision "is a huge relief, but we're not out of the woods yet."
"For now, providers and patients have the assurance that mifepristone is available" and approved by the Food and Drug Administration (FDA), Northup said. "But we shouldn't even be here. This case should have been thrown out way before it got to the Supreme Court."
President Joe Biden also welcomed that the Supreme Court granted the emergency stay requested by the U.S. Department of Justice (DOJ) in Alliance for Hippocratic Medicine v. FDA, and vowed that his administration will "continue this fight in the courts."
The high court's order halts a decision from Texas-based U.S. District Judge Matthew Kacsmaryk, an appointee of former President Donald Trump who earlier this month ruled against the FDA's 2000 approval of mifepristone, in response to a lawsuit brought by right-wing activists ultimately aiming to end abortion care nationwide.
The 5th Circuit Court of Appeals then partially blocked Kacsmaryk's ruling, preserving access to mifepristone—which is often taken in tandem with misoprostol for medication abortions—but reinstating rules that it cannot be dispensed by mail and only can be used up to seven weeks of pregnancy rather than 10.
Justice Samuel Alito temporarily put the 5th Circuit ruling on hold until Wednesday, then extended the deadline by two days. On Friday, he and fellow right-winger Justice Clarence Thomas dissented. While Thomas did not explain his position, Alito wrote in part that allowing the appeals court's decision to take effect while the broader legal fight continues "would simply restore the circumstances that existed (and that the government defended) from 2000 to 2016 under three presidential administrations."
As Alio noted, oral arguments before a three-judge panel from the 5th Circuit are scheduled for mid-May—and, like arguments before Kacsmaryk in March, might feature right-wing attorneys trying to revive a 19th-century obscenity law known as the Comstock Act.
"If it were just up to the science, this case would be thrown out," Dr. Daniel Grossman—an OB-GYN who directs the research program Advancing New Standards in Reproductive Health at the University of California, San Francisco—told The Washington Post earlier this month. "We have over two decades of science showing how safe this is."
The Guttmacher Institute tweeted Friday morning: "Remember, we should not be here in the first place. This case is about politics, not the law or facts. Mifepristone is safe, effective, and should be available to everyone seeking medication abortion care."
While some patients and providers already rely on only misoprostol for abortions, using it alone is less effective than pairing the two medications, so "banning mifepristone could mean more money spent, more mental anguish over lingering symptoms of an unwanted pregnancy, and more time spent arranging treatment and figuring out how to step away from work or family responsibilities," Slate noted. "For people who live in states that restrict abortion, it could mean a second trip across state lines."
"It will also mean more pain and suffering," Slate warned, explaining that "because it takes much more misoprostol to terminate a pregnancy without the assistance of mifepristone—three doses of four tablets, left to dissolve in the mouth, rather than a single dose of four—the physical toll can be harsher," with patients reporting "a higher prevalence of diarrhea, fever, and chills."
The current legal battle over mifepristone comes as states controlled by anti-choice Republican legislators and governors continue to roll back abortion rights in the wake of the U.S. Supreme Court's right-wing justices reversing Roe last June with their Alito-authored majority decision in Dobbs v. Jackson Women's Health Organization.
In a dozen states—Alabama, Arkansas, Idaho, Kentucky, Louisiana, Mississippi, Missouri, South Dakota, Tennessee, Texas, Oklahoma, and West Virginia—abortion "is completely banned with very limited exceptions," according to the Guttmacher Institute's online tracker.
Guttmacher characterizes policies in another 14 states as "restrictive" or "very restrictive." One of them is Florida, where Republican Gov. Ron DeSantis, a presumed 2024 presidential contender, last week signed a six-week abortion ban that will take effect if the state Supreme Court upholds an earlier 15-week ban.
Stand Up America managing director for communications Monica Garcia on Friday tied the mifepristone fight to Dobbs, saying that the high court's decision "to overturn Roe v. Wade opened the door for partisan hacks like Judge Kacsmaryk to attack abortion access in the first place."
"If Kascmaryk's ban is allowed to stand, it will have devastating consequences for millions of Americans who rely on mifepristone for abortion care," Garcia said. "We cannot allow the right-wing justices on the court to continue to erode our fundamental freedoms until we no longer recognize the country we live in. Congress has the power to restore balance to this hyperpartisan Supreme Court by expanding the court, and they should use it."
Brett Wilkins contributed to this reporting.
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Supreme Court Postpones Crucial Abortion Pill Ruling
"The Supreme Court knows that siding with extreme Trump judges to restrict medication abortion will ignite the biggest political firestorm since Roe v. Wade was overturned," said one advocate.
Apr 19, 2023
An anticipated ruling on access to mifespristone, one of two medications used in a majority of abortions in the U.S., was delayed by the U.S. Supreme Court on Wednesday, giving the court until Friday to rule on the availability of the pill.
The court is considering a ruling handed down earlier this month by the 5th Circuit Court of Appeals, which would terminate Food and Drug Administration (FDA) policies adopted in 2016 to improve access to mifepristone. That year, the agency allowed patients to obtain the pill through the mail, retail pharmacies, and telemedicine prescriptions.
If allowed to take effect, the appeals court ruling would also change the FDA's approval of the drug to seven weeks of pregnancy instead of the current 10 weeks.
The appeals court ruling only partially blocked an early decision by right-wing U.S. District Judge Matthew Kacsmaryk, which would entirely suspend the FDA's approval of mifepristone, more than two decades after the drug became legally available.
The FDA and drug companies have warned that even allowing the 5th Circuit Court of Appeals' ruling to go forward would drastically cut access to mifepristone, which has been used by more than 5 million people in the U.S. since its approval.
Reproductive rights groups on Wednesday emphasized that "mifepristone remains available" until at least Friday, while warning that a ruling in favor of the lower courts' decisions will harm millions of people who rely on the medication.
"There is only one acceptable outcome here," said the Guttmacher Institute, a research and policy group.
Allowing the lower courts' rulings to move forward would also "set a dangerous precedent that will severely hamper the development and approval of lifesaving new drugs—and even put critical medications that we currently rely on at risk,"
said the ACLU.
Supreme Court observers were left to wonder Wednesday evening whether the ruling was delayed to give time to a liberal justice to write a dissent regarding a denial of a stay on the appeals court's decision, or for a conservative justice to dissent against a stay.
NARAL Pro-Choice America President Mini Timmaraju expressed hope that "the anti-choice extremists on the court" will "throw in the towel and accept reality: the science, the facts, and the law are all on the side of legal and accessible medication abortion."
"As this case continues, safe and effective medication abortion with mifepristone in all 50 states remains in peril. The Supreme Court knows that siding with extreme Trump judges to restrict medication abortion will ignite the biggest political firestorm since Roe v. Wade was overturned," said Timmaraju. "The lower courts' decisions have been entirely baseless."
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Abortion Rights Supporters Protest at US Supreme Court, Nationwide
From Florida and Texas to California and Illinois, demonstrators marched with chants like, "Red state, blue state, you can't hide, the war on abortion is nationwide," and "Fascist judges make me ill, hands off the abortion pill."
Apr 16, 2023
As legal fights raise concerns about the future accessibility of the abortion medication mifepristone, reproductive rights supporters on Saturday rallied outside the U.S. Supreme Court and in cities across the country.
The demonstrations came a day after the U.S. Supreme Court temporarily blocked a recent ruling by Texas-based federal Judge Matthew Kacsmaryk, an appointee of former President Donald Trump who struck down the U.S. Food and Drug Administration's 2000 approval of mifepristone, one of two drugs often taken in tandem for abortions.
However, the high court's decision last year in Dobbs v. Jackson Women's Health Organization, which reversed Roe v. Wade and overturned a half-century of abortion rights, is fueling fears of what the future holds, as Republican-controlled states across the country continue passing legislation to further limit the choices of pregnant people.
Planned Parenthood of Metropolitan Washington, D.C. president and CEO Laura Meyers, who spoke at the rally in the nation's capital, noted the Dobbs decision and, referring to Kacsmaryk's ruling earlier this month, said that "now we have judges who are not medical doctors making decisions that affect millions of people's lives."
"I am outraged," Meyers told The Washington Post. "I hope that the court relies on science, and not just junk and ideology. I hope that the court understands that the overwhelming vast majority of Americans do not want to see restrictions on abortion. Americans do not want judges and politicians interfering with our healthcare decisions."
ACLU of D.C. policy counsel Melissa Wasser, who also spoke at the rally, stressed that the long-term risks of rulings like Kacsmaryk's go far beyond abortion rights, saying: "Today it's mifepristone. Tomorrow it could be a vaccine."
"It could be another medication or lifesaving treatment," Wasser warned. "And that means that every fringe group can just go pick a judge, and with the stroke of a pen, millions of people will not get the lifesaving healthcare that they need."
Brittany House, a Washington, D.C. resident, shared with the crowd that when she had just graduated from university in 2012, "abortion gave me freedom," adding that as a 21-year-old, she "wouldn't have been able to support my child."
According to Agence France-Presse:
Many septuagenarians were also marching in front of the Supreme Court, outraged to see restrictions piling up in the country, 50 years after having fought for the right to an abortion.
An abortion "saved my life," said Barbara Kraft, who had an abortion in the late 1970s after serious complications during her pregnancy.
"I feel so strongly that women have to have the right to make that decision for themselves," she said.
"The ACLU and Planned Parenthood and several other national partner organizations have been following this case out of Texas for months and we organized and coordinated to host rallies on the same day across the country," Samantha Chapman, the advocacy manager for the ACLU of South Dakota, told a local news outlet.
"Self-managed abortion is safe and it is essential healthcare. I've done it," said Chapman. "People who support abortion access are never going to go away. We will continue to take care of ourselves and take care of our communities."
The Seattle Times reported that in the Washington city, protesters marched down Pine Street through Capitol Hill and into the downtown area, where they blocked an intersection, while chanting, "Fascist judges make us ill, hands off the abortion pill," and "Abortion pills are under attack, we won't go back."
According to the Chicago Sun-Times, demonstrators in the Illinois city delivered speeches at Federal Plaza before marching through the Loop and Millennium Park, and similarly chanted, "Red state, blue state, you can't hide, the war on abortion is nationwide," and "Fascist judges make me ill, hands off the abortion pill."
Since the Dobbs ruling, Illinois has been inundated with "abortion refugees" who can't get healthcare in surrounding states.
Rise Up 4 Abortion Rights organizer Jay Becker warned that "we are facing the greatest threat to women's lives and freedoms since last summer when the Supreme Court decided women are second-class citizens."
"To revoke the approval of mifepristone is a major step toward banning abortion nationwide," Becker added. "This is all about female enslavement and whether women will be treated as full human beings or not."
Floridians gathered in West Palm Beach on Saturday to protest not only attacks on reproductive rights across the country but also a six-week abortion ban signed into law this week by Republican Gov. Ron DeSantis, a presumed 2024 presidential candidate.
"We need to get mad and we need to show we're mad and this is going to change the whole country," said Ellen Baker, a board member of the Democratic Women's Club of Palm Beach County, which organized the rally. "I was in high school when Roe v. Wade was passed and so for me, it's, how can we go backward? How can my grandkids have fewer rights than me?"
The rally in Los Angeles, California featured a speech from Vice President Kamala Harris, who declared: "This is a moment that history will show required each of us, based on our collective love of our country, to stand up and fight for and protect our ideals. That's what this moment is."
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