Kacsmaryk’s ruling on medication abortion threatens to destroy access to a safe and effective drug: a challenge to Rice and Resneck, the AMA

Within less than an hour, two major rulings came down in separate, closely watched cases concerning medication abortion – in lawsuits that are completely at odds with each other.

Rice ordered that mifepristone be kept available in several states if Kacsmaryk’s ruling is allowed to go into effect. Kacsmaryk has a nationwide injunction.

Ultimately, he said he would not grant the Democratic states’ request that he remove some of the drug restrictions at this preliminary stage in the proceedings, because that would go well beyond maintaining the status quo while the case advances. The FDA rule allowing the distribution of abortion pills would be undone if he had granted that request. That would make it more difficult to find it and would run directly counter to the request.

According to Jack Resneck Jr., the president of the American Medical Association, a ruling by Kacsmaryk threatens to destroy access to a safe and effective drug.

Kacsmaryk, whose anti-abortion advocacy before joining the federal bench was documented by a recent Washington Post profile, showed a striking hostility to medication abortion, which is the method used in a majority of the abortions in the United States.

He said the FDA’s refusal to impose certain restrictions on the drug’s use “resulted in many deaths and many more severe or life-threatening adverse reactions.”

“Whatever the numbers are, they likely would be considerably lower had FDA not acquiesced to the pressure to increase access to chemical abortion at the expense of women’s safety,” he said.

“The court’s disregard for well-established scientific facts in favor of speculative allegations and ideological assertions will cause harm to our patients and undermines the health of the nation,” the AMA president said.

The judge wrote that the ruling in the challengers favor would ensure that the women and girls were protected from unnecessary harm and that they did not disregard federal law.

He stated that the preliminary injunction, which was handed down before the case could proceed to a trial, was justified as he explained why embryo rights could be part of the analysis. That assertion goes farther than what the Supreme Court said in its June ruling, known as Dobbs v. Jackson Women’s Health.

Kacsmaryk said Friday that the analysis of individual justice andirreparable injury could apply to the unborn humans who have been extinguished by mifepristone.

They had asked Rice to remove certain restrictions – known as REMS or Risk Evaluation and Mitigation Strategy – the FDA has imposed on mifepristone, with the blue states arguing the drug was safe and effective enough to make those restrictions unnecessary.

But less than an hour after Kacsmaryk’s ruling, US District Judge Thomas Owen Rice of the Eastern District of Washington, an appointee of former President Barack Obama, ordered the federal government to keep the drug available in 17 states plus the District of Columbia.

They are appealing to the US 5th Circuit Court of Appeals, which may be the country’s most conservative appeals court. Some legal scholars were skeptical about the 5th Circuit being conservative enough to allow Kaczynski’s order to take effect.

Washington, where the blue states sued, is covered by the 9th Circuit, a liberal appellate court. But it’s unclear if the ruling from Rice will be appealed. Garland said the Justice Department was still working on the decision out of Washington. The Supreme Court might intervene if a circuit split is made. But given how the practical impact of the two district court rulings contradict each other, the Supreme Court may have no choice but to get involved.

Friday evening, the lawyer for the challengers in the Texas case, anti-abortion medication associations and doctors, said he had not reviewed the Washington decision yet, so he couldn’t speak on how it would affect Kacsmaryk’s order that the drug’s approval be halted.

Baptist, who is an attorney with Alliance Defending Freedom, said he was unsure of a direct conflict with the Washington state decision. If there is a conflict and it is destined to the Supreme Court, then I think it is not necessary to make that conclusion.

First impressions from Rice in the 2014 Montes v. City of Yakima decision: What would he want to do next?

Rice presides over cases related to federal firearm offenses, assault of a federal officer with a deadly weapon, and fraudulently obtained Covid-19 relief funds.

Rice wrote at the time that the public interest weighed in favor of the abortion provider as it would prevent harm to the community.

“The existing record, undisputed in all material respects, supports only one rational conclusion: that under the totality of the circumstances, City Council elections are not ‘equally open to participation’ by Latino voters,” Rice said in his 2014 Montes v. City of Yakima decision. Latino voters have a steep mathematical disadvantage because of the numbered post system, which has an effective majority vote requirement.

Rice’s reply to lawmakers offered a glimpse into how he would view higher courts and how he would think as a judge.

If there were no controlling precedents that had concluded an issue before Rice, which sources and guiding principles would he use to make a first impression?

“I would first turn to the plain meaning of the words of the statute,” the judge responded. “If necessary, I would seek to determine the context and intent of Congress. I would also look to analogous cases from the Supreme Court and the Ninth Circuit Court of Appeals for guidance. If no other similar cases were available, I would consult other federal court decisions that considered the issue or like issues.”