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One of the most high-stakes legal battles over abortion rights right now isn’t happening in front of the U.S. Supreme Court — it will be decided, at least in the short term, by one judge in Amarillo, Texas.

An anti-abortion group has asked U.S. District Judge Matthew Kacsmaryk for the Northern District of Texas to order the Food and Drug Administration to pull a pill used in medication abortions off the market nationwide. Kacsmaryk, a Trump appointee, worked for a Christian conservative legal group earlier in his career.

The FDA approved the abortion drug in question in the current lawsuit — mifepristone — more than 20 years ago to terminate pregnancies up to 10 weeks. Taken with a second medication, misoprostol, the regimen is highly effective. More than half of the women who terminate their pregnancies in the United States do so via medication abortion — a process that has taken on increasing significance in a post-Roe world, where regulations on abortion are left up to the states.

A group called Alliance for Hippocratic Medicine filed the lawsuit, arguing that the government did not adequately evaluate mifepristone’s safety and shouldn’t have made it accessible via telehealth during the Covid pandemic. However, the Biden administration said in a recent court filing that the “FDA extensively reviewed the scientific evidence and determined that the benefits of mifepristone outweigh any risks,” and that the “public interest would be dramatically harmed” if the drug is taken off the market.  

If the judge grants the group’s request for a preliminary injunction to take mifepristone off the market, and the FDA follows the court’s order, that would cut off access to the drug nationwide while the legal fight wages on. If that happens, the case is likely to revive a familiar debate over the advisability of one unelected judge overriding a federal agency’s decision-making — effectively setting policy for the entire country.

So what is this injunction request, and what happens if the judge grants it? 

An ‘extraordinary remedy’

A preliminary injunction is a court order that requires a party to take an action or prohibits an action before trial, while a case is ongoing. The side seeking the injunction is supposed to satisfy a multiprong test — generally establishing it’s likely it will win the lawsuit in the end but will suffer “irreparable harm” in the interim if the injunction isn’t issued. 

In the case of mifepristone, some legal experts say, the length of time the drug has been on the market makes an injunction inappropriate.

“In light of the 20-year history, it’s hard to see the immediate threat of irreparable harm” if mifepristone stays on the market while the case is litigated, said Washington and Lee School of Law professor Alan Trammell.

Trammell has written extensively on nationwide injunctions and advocated that courts use them “very sparingly,” and only when a federal action is “clearly unlawful.”  

Rachel Rebouché, dean of the Temple University Beasley School of Law and an expert in reproductive health law, said that if Kacsmaryk issues a preliminary injunction banning mifepristone, he’d have to ignore “copious evidence that mifepristone is a really safe drug” that has been “very closely regulated.”

Typically, injunctions only affect the parties to the lawsuit, but some orders barring the federal government from carrying out a policy or law are inherently national in scope. Injunctions in those cases often trigger blowback.

During the Trump administration, then-Attorney General Jeff Sessions seemed mystified as to how “a judge sitting on an island in the Pacific” could halt Trump’s travel ban, for example. Sessions viewed the use of nationwide injunctions as a symptom of judicial activism, and he directed Justice Department lawyers to fight them. 

Some Trump administration officials at the Justice Department, including Deputy Attorney General Jeffrey Rosen, claimed that judges issued injunctions with more frequency against Trump orders, but hard data is difficult to find. Other legal scholars have argued that no matter which party is in office, nationwide injunctions are necessary at times to prevent damage from unprecedented executive actions or to serve as a meaningful check on government overreach.

The Supreme Court hasn’t directly weighed in on the constitutionality of nationwide injunctions but has described preliminary injunctions as an “extraordinary remedy.” 

Forum shopping 

Some legal observers say that part of what animates the debate over nationwide injunctions is the strategy of deliberately filing a lawsuit in a jurisdiction viewed as sympathetic to a cause — a practice known as “forum shopping.”  

In the case of mifepristone, some abortion rights advocates have pointed to the record of Kacsmaryk, who is assigned by local order to hear all civil cases in the district. He previously represented a group called First Liberty Institute, which filed suit challenging the part of the Affordable Care Act that required employers to provide free insurance coverage for birth control.

After a federal judge in Texas issued an injunction against that part of the law, Kacsmaryk said it was an “important victory” as the group sought to “defend unborn human life.”  

What happens if mifepristone is blocked?

In the current case, the Biden administration argues that taking mifepristone off the market, even temporarily, “would cause worse health outcomes” and increase the likelihood of women turning to “an invasive medical procedure,” while some will have no access to abortion at all.

A ruling in the Texas case could also have implications for cases about abortion pills in North Carolina and West Virginia. In those suits, the drug manufacturers are asking for injunctions to block state laws that make abortion pills unlawful or difficult to obtain.

“I worry about the confusion that’s going to result,” Rebouché said. 

If Kacsmaryk issues an injunction in this case, the Justice Department can immediately ask a higher court to pause, or “stay,” the injunction (or narrow its reach). But that outcome is not guaranteed, given the current conservative leaning of judges who sit on the 5th Circuit Court of Appeals and the Supreme Court.

Kacsmaryk has ordered the parties to finish filing legal briefs in the case by February 24 but has not indicated when he will rule.

#judge #throw #abortion #pill #access #question #nationwide

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