Texas Judge Tries to Keep Abortion Pill Hearing Quiet to Prevent Disruptions
A federal judge in Texas is expected to hold the first hearing this week in a case that could lead to the Food and Drug Administration being forced to withdrawal its approval for the two-pill regimen that is now used to carry out a majority of abortions in the United States.
But U.S. District Judge Matthew Kacsmaryk tried to keep Wednesday’s planned hearing quiet until the night before in an effort to avoid disruptions, the New York Times reported Sunday.
According to the paper, Kacsmaryk, a Trump appointee, told lawyers in the case that he was scheduling a hearing for Wednesday morning, but he asked them not to disclose that and said he wouldn’t be entering it into the public record until Tuesday night. Kacsmaryk told the lawyers he wanted them to be able to share their points in an orderly fashion without having to worry that the hearing would be “disrupted,” the paper reported.
Kacsmaryk indicated that the court staff has faced security issues, including death threats, in connection with the case, the Times reported.
The most recent filing in the docket was Friday, a notice of appearance of a U.S. Department of Justice lawyer. There is nothing in the docket indicating that there will be a hearing Wednesday.
The case stems from a lawsuit filed in November by Alliance Defending Freedom on behalf of the Alliance for Hippocratic Medicine, an organization of pro-life medical groups, as well as four pro-life doctors. The lawsuit claims that the FDA never had the authority to approve of the two-pill regimen of mifepristone and misoprostol when it did so nearly a quarter century ago. The FDA also failed to properly study the safety of the regimen, and for almost two decades it stonewalled the doctors who were attempting to challenge the approval of the regimen, according to the lawsuit.
It is unclear if Kacsmaryk will issue a ruling the day of the hearing or at a later date. If he rules in the plaintiffs’ favor, it could mean that the FDA would be forced to withdraw its approval for the abortion-pill regimen, or safeguards could be reimposed on the use of the pills for abortions.
The Biden administration has vowed a legal challenge if Kacsmaryk’s ruling restricts the use of abortion pills. If a ruling in the plaintiffs’ favor was upheld on appeal, it would likely make it harder for women to get abortions even in states where it is legal.
More than half of all abortions in the U.S. are done using chemical-abortion pills.
“It is far past time for the FDA to put politics aside, follow the science, and to begin to fulfill its responsibility to protect women and girls from chemical-abortion drugs,” Julie Blake, a senior ADF lawyer, told National Review last month.
Proponents of legalized abortion pills disagree that the pills are dangerous. They have also accused of ADF of intentionally filing the lawsuit in U.S. District Court in Amarillo, Texas, knowing they would almost certainly draw Kacsmaryk, the only judge in the federal district.
The Washington Post recently described Kacsmaryk as a “religious conservative who is widely regarded as a thorough and analytical legal thinker, but who also comes to his work with a long history of activism rooted in his religious beliefs.” Before he became a federal judge, Kacsmaryk was a federal prosecutor and then a lawyer for the conservative First Liberty Institute. Abortion-rights supporters say he has long expressed strong anti-abortion convictions, and they have attacked him as a “villain” and a “lifelong right-wing activist.”
Testifying before the Senate in 2017, Kacsmaryk vowed to be fair. “As a judge, I’m no longer in the advocate role,” he said. “I’m in the role of reading and applying with all good faith whatever Supreme Court and Fifth Circuit precedent is binding.”
The 113-page ADF lawsuit claims that the FDA exceeded its regulatory authority in September 2000, when it approved the two-pill regimen, which then-president Bill Clinton had aggressively lobbied for.Rather than increase scrutiny of the pills, the FDA has instead eliminated the safeguards that did exist and has made them easier to obtain, according to ADF.
In 2016, the FDA increased the gestational age of the unborn baby when abortion drugs are allowed from seven weeks to ten, reduced the number of required office visits from three to one, allowed non-doctors to prescribe and administer the pills, and eliminated the requirement for prescribers to report nonfatal adverse events from chemical-abortion pills.
In 2021, during the coronavirus pandemic and after Joe Biden was elected president, the FDA announced that it would allow abortion pills to be dispensed through the mail.
