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The National M&M Debate Is No Longer about Spokescandies

On Monday, we had a rundown of the weekend's developments on the abortion front, as a Texas judge tried to outlaw Mifepristone while a Washington judge insisted it was still legal (in 17 blue states and D.C., at least). That news was still pretty fresh on Monday, and law (particularly this area of the law) is not our specialty. Further, there have been new developments this week. So, it is time to revisit this issue, aided by some readers whose expertise outstrips our own.

First up, the new developments. On Wednesday, we noted that Rep. Nancy Mace (R-SC), who is most certainly a loyal Republican, and who represents a solid red district, was on TV badmouthing the ruling from Texas Judge Matthew Kacsmaryk, suggesting that people should just ignore it. It's very unusual for a politician to jump the gun like that, particularly when they are taking a position that seems to go against their party's orthodoxy. We interpreted the fact that Mace was trying to get out ahead of the story as evidence that the Kacsmaryk decision was very bad news for Republicans, politically.

Since then, there has been a bit of polling, and it would seem that we (and Mace) were right. For example, a poll from IPSOS reports that 82% of Democrats and 53% of Republicans oppose Kacsmaryk's ruling. The same poll finds that 56% of Americans think the decision was politically motivated, while only 20% think it wasn't. Meanwhile, a new Pew poll says that roughly two-thirds of Americans want abortion pills to remain legal in their state, including 73% of Democrats and 35% of Republicans.

Mace isn't the only Republican politician from South Carolina who is clearly frightened by these numbers. Senator, and would-be president Tim Scott is scared, too, although he showed it in a different way. Reader M.B. in Menlo Park gave us the heads up about video of the Senator answering a question triggered by the mifepristone ruling, namely "Would you support a federal ban on abortions?" Scott's answer brings to mind a deer in the headlights. Here's a transcription:

I would simply say that the fact of the matter is, when you look at the issue of abortion, one of the challenges that we have, we continue to go through the most restrictive conversations without broadening the scope and taking a look at the fact that... I'm 100 percent pro-life. I never walk away from that. But the truth of the matter is that when you look at the issues on abortion, I start with the very important conversation I had in a banking hearing where I was sitting in my office and listening to Janet Yellen, the Secretary of the Treasury, talk about an increase in the labor force participation rate for African-American women who are in poverty by having abortions.

I think we're just having the wrong conversation. I ran down to the banking hearing to see if I heard her right. Are you actually saying that a mom like mine should have an abortion so that we increase the labor force participation rate? That just seems ridiculous to me. And so I'm going to continue to have a serious conversation about the issues that affect the American people. I want to start by pointing out the absolute hypocrisy of the left on the most one of the more important issues.

If there is an answer to the question, we don't see it. And if a fellow like Scott, who surely knows that questions like this are coming, has not been able to develop a decent answer in the week since the Kacsmaryk decision (and, for that matter, the 9 months since the Dobbs decision), then is he ever going to be able to develop a decent answer?

And speaking of Kacsmaryk, the (very conservative) Fifth Circuit has already weighed in and decreed that while mifepristone is not banned nationwide for now, the rest of the ruling is sound, and so its use must be restricted. That decision has already been appealed to the Supreme Court. Meanwhile, the Washington judge, Thomas Rice, has also spoken up again, and said that his ruling is definitely still in force in the 17 blue states and D.C., no matter what the Fifth Circuit says. So, the situation continues to be something less than crystal clear.

In view of the fact that this is well out of our wheelhouse, we've asked a reader who is both a lawyer and an expert in abortion-related legislation and jurisprudence, to comment. And so, we yield the (metaphorical) floor to A.R. in Los Angeles:

To add to (V)'s item about the two decisions regarding mifepristone, it's important to amplify (V)'s correct conclusion that the danger here is the complete disregard of the agency's expertise, regardless of the subject matter. First, Judge Kacsmaryk completely veered way out of his lane. It may seem that federal courts have unlimited discretion to decide cases based on their own personal predilections, but that is far from the case. There are very concrete guardrails and rules of review that these courts must follow—and that the Washington court was very careful to follow. In the Washington opinion, it was clear that, whatever Judge Rice's personal politics or feelings about the subject (which he, quite responsibly, did not bring into it), his decision was based on the law and the facts before him and narrowly tailored to only maintain the status quo.

The plaintiffs in each case are essentially posing the same question but from opposite positions: Is mifepristone safe and effective? But the Courts don't get to answer that question, per se. All they can do is see if the FDA, when it was examining that question, followed the required protocols and acted within its authority. When it comes to reviewing an agency's determination under the Administrative Procedures Act (APA), which governs federal agencies' procedures, the standard of review is commonly known as "deference" to the agency. Decisions, like the FDA's decision to approve mifepristone back in 2000, can only be overturned if they are "arbitrary and capricious" or outside of their statutory authority or otherwise against the law. Moreover, the review is even more deferential with respect to "scientific determinations within its area of expertise." (See Rice's opinion, p. 9). But Kacsmaryk decided to pull a Prince Humperdinck and skip to the end and ignore the constraints on his authority to achieve the desired outcome. But Kacsmaryk, like any federal judge, cannot simply substitute his own beliefs for the scientific conclusions of the FDA. As (V) suggests, that would open the floodgates to all kinds of mischief for any other medication, no matter how long ago it was approved. It's not the first time a federal judge has gone rogue and it won't be the last. Regardless of the charged political atmosphere, even the Fifth Circuit should recognize that the Court's ruling is itself arbitrary and capricious for failing to follow basic standards of review when it comes to scientific agency determinations.

Sadly, the ruling from the 5th Circuit late Wednesday is no less wacky (to use a technical term). The two judges in the majority, both appointed by Donald Trump, not surprisingly (hmm, I'm beginning to think that competency and some knowledge of the law was not a prerequisite for Trump appointees) modified Kacsmaryk's order to say that any action taken by the FDA after 2016 with respect to mifepristone is stayed but that the original approval granted in 2000 is still in place. Their "reasoning" is that a stay is an "extraordinary remedy" (ignoring the extraordinary action of the district judge) and that the anecdotal examples of the plaintiffs (as well as cherry-picked examples like the warning labels on Mifeprex) trump the studies and statistics supporting the FDA's subsequent actions and mean that those actions should be enjoined. As a practical matter, what this means is that the brand name drug Mifeprex approved in 2000 is still available but the generic drug, Gen Bio Pro, which was approved in 2019, is likely now "unapproved"—for completely arbitrary reasons. Because of this, the DOJ just announced that they'll seek emergency relief in the U.S. Supreme Court since this represents an unprecedented overreach on the part of the courts to substitute their personal preferences for evidence-based and scientific approval processes at the FDA. Incidentally, the dissenting judge of the 3-judge panel was appointed by George W. Bush. She would have (correctly) stayed the entirety of Kacsmaryk's order.

Meanwhile, in the part of the judiciary that still believes in the rule of law, the Washington judge followed the requirements of deference and issued a very narrow ruling maintaining the status quo and FDA's current approval conditions of mifepristone as of January 2023, which denied the plaintiffs the relief they were seeking (which was to lift all restrictions on mifepristone). And in contrast to the Texas ruling, his ruling only applies to the states that brought the suit—it's not a nationwide injunction. District court judges are admonished to issue the most narrow ruling possible—nationwide injunctions are the exception, not the rule, especially in the Ninth Circuit. And needless to say, that opinion contains none of the inflammatory language that the Texas decision is rife with. The FDA has asked the Washington court for clarification of its ruling, and just today, the court modified its order to say that, while it still only applies to the 18 states who are parties to the case, the FDA can't take any action to alter mifepristone's availability "irrespective of the Northern District of Texas Court ruling or the Fifth Circuit's anticipated ruling."

The other thing to note is that, as epidemiologist Katelyn Jetelina points out in her excellent public health newsletter, Kacsmaryk didn't actually order the FDA to do anything. So, the FDA could, in its "enforcement discretion", elect not to enforce the Texas decision with respect to medications under its purview, a power the Supreme Court has recognized since 1982. This is permissible since the order did not require any particular action, so it would not be considered ignoring the Court's order. And given the contradictory opinion out of the Washington court, that action would seem to have even more cover. But clinics in states where the AG is hostile to abortion rights have to tread very carefully to avoid issues under state law.

And finally, with respect to a misoprostol-only regimen, while it may be slightly less effective if the dosage is wrong, miso-only has been used safely and effectively in Europe and around the world for decades. The downside is that one can't anticipate as well when the cramping or bleeding will start and it's generally more painful. So particularly for those women who have to travel out of state, it's considerably more burdensome. For this reason, mifepristone remains the gold standard and it's shameful that politicians are making healthcare less optimal, but misoprostol is a safe and effective alternative.

Thanks, A.R.! And, as long as we're at it, we got some comments from readers that help to round out/clean up our items, and that we think more sense to run right here, as opposed to waiting until Sunday:

M.S. in Parma, OH, writes: In your item titled "Courts Give Opposing Rulings on Mifepristone," you wrote: "Friday was an interesting day on the abortion front, and a vivid demonstration that two judges presented with the same facts and the same law can come to diametrically opposed decisions (presumably based largely on their personal politics)."

The parenthetical furthers the unfortunate trope that all judges are motivated by politics rather than the law. The rest of your post on the rulings correctly analyzed the Kacsmaryk ruling and showed some of its many flaws. It is absolutely the result of the judge's "personal politics." You failed to note, however, that Judge Rice's ruling was correct based on all applicable legal precedent. In other words, it wasn't based on his personal politics.

These cases are an illustration of the fact that for decades the Federalist Society and the Republican Party have attempted to stack the federal courts with judges who will allow their "their personal politics" to dictate their decisions. Unfortunately, Donald Trump turned the nomination process over to the Federalist Society. Not all judges he nominated were extremist ideologues, but some were. Kacsmaryk is an example.

Although Democratic presidents have appointed mostly judges with Democratic sympathies, they have almost always tried to put qualified judges on the bench, not attempted to nominate judges who will rule in favor of any litigant espousing liberal causes. And there is no Democratic version of the Federalist Society.

E.B. in Seattle, WA, writes: While I appreciate your coverage of the mifepristone legal issue, I think that you missed the boat in a couple of respects, mainly in the coverage of Judge Rice's opinion issued Friday: There is certainly an interesting issue of timing. But there's also no way that Rice did not expect that the Kacsmaryk ruling was coming and that it could have been exactly what was released. Rice could have easily written the ruling a week ago and left it in his desk drawer until it was needed.

S.G. in Newark, NJ, writes: This week's posts included two pretty strong expressions of outrage against legal rules that resulted in or allowed undesirable outcomes. The outrage is understandable, but caution is called for. It's always worth considering that rules we sometimes dislike may lead to results we like, and vice-versa.

On Thursday, (V) complained about The Former Guy's lawsuit against The Former Fixer. Noting that the suit seems like nothing more than an exercise in harassment and intimidation, (V) thought it a "clear case" where the European rule—loser pays winner's attorneys' fees—is better than the American rule in which parties generally pay their own fees no matter who wins. It's true, that rule likely discourages parties from bringing lawsuits they know to be frivolous. But it may also discourage parties from bringing meritorious lawsuits for fear that a quirky loss would cause a crippling judgment for a well-heeled defendant's lawyer's gold-plated bills; from bringing possibly-meritorious-but-uncertain lawsuits; or from bringing long-shot lawsuits intended to change settled law, like, say, Miranda v. Arizona, Gideon v. Wainwright, Roe v. Wade, or Brown v. Board of Education. As TFG himself has amply demonstrated, American courts have other mechanisms for dealing with frivolous lawsuits, including sanctions on the attorneys involved which may, when appropriate, include fee-shifting.

On Monday, (V) let fly at Judge Kacsmaryk, directing his outrage at the institution of judicial review: "Judicial review isn't a power the Constitution specifically grants to even the Supreme Court, let alone to all 670 district judges." And if the Supreme Court takes the case and sustains Kacsmaryk, "they will in fact be saying that the decision to allow or prohibit [mifepristone] is not up to the democratic process. It is up to one unelected activist judge."

Whoa, Nellie! Certainly, judicial review of agency action is anti-majoritarian. That's why it's there! It's designed to ensure that "because we got elected and therefore we can" does not trump the rule of law. Judicial review of agency action is why TFG's Gang That Couldn't Govern went on such a losing streak whenever they tried to ignore the laws that were, you know, on the books. Judicial review ended the "don't say abortion" gag rule. Judicial review has protected an awful lot of the environment from ill-conceived and politically-motivated projects. Remember that for much of the 1970s and 1980s and even into the 1990s the "stop judicial activism" shoe was firmly on the right-hand foot (which makes for such delicious irony in the administrative law opinions of today's Supreme Court).

We have debated, can debate, and will ever debate how to find the right balance of policy-making power among the legislative, executive, and judicial branches. But it's too simplistic to suggest that judges should butt out because decisions like approving a drug should be "up to the democratic process." First of all, I don't want those decisions to be made by popular vote, thank you very much; for all I know, if it had been put to a vote the COVID-19 vaccine would still be on the shelf and ivermectin would be an approved treatment for the disease. I want those decisions made by experts applying judgment and standards that a duly-enacted statute authorizes them to apply. But second of all, I also want a judicial check if those "experts," accountable to political appointees, make decisions that are arbitrary and contrary to all reason, or for made-up reasons, like when (oversimplifying) the Reagan Administration decided airbags wouldn't make cars safer or the Trump Administration lied about why it wanted the Census Bureau to ask about citizenship.

And if we need any reminder about the importance of that check, consider that the Israeli populace is protesting to protect its democracy by maintaining the power of Israel's courts to rein in the actions of the elected government. As (Z) observed, "it would be bad if the U.S. Congress was empowered to unilaterally set aside court decisions." It would be just as bad if the President were so empowered, or if we didn't have judicial review at all. The problem isn't the institution of judicial review; it's the unprincipled use of that power.

I concede that it can be hard to find a principled definition of what unprincipled looks like. Though some recent court decisions really do tempt the response, "I know it when I see it."

N.G. in San Jose, CA, writes: You wrote: "It would be ironic if the main effect of Kacsmaryk's ruling were to cause women seeking an abortion to end up using a drug that was less effective and had more complications than the preferred one."

I have to point out that the anti-abortion extremists would prefer that abortion be less effective, have more complications in order to punish women for getting pregnant and for not wanting to carry through with the pregnancy. They want abortion to be more difficult in all ways, also more painful so they can teach those uppity women a lesson and to scare them straight.

How can judges who are biased by their religious views be fair? If we were a single-religion theocracy much like Iran, then maybe it wouldn't matter. However, the United States has evolved beyond the Puritan religion, welcoming people with all sorts of faiths. Also, the United States was a refuge for those fleeing religious persecution. More and more Americans are waking up to the fact that we cannot be a multi-religious, multi-ethnic, multi-cultural nation and democracy when there are Christian extremists who want to pack the courts and legislatures with their ideological allies. It is incompatible with democracy.

Again, thanks all!

Finally, keeping in mind that we are teachers first and foremost, we know there are readers who would like to better understand the anti-abortion side of this issue. Back when the Dobbs ruling came down, we ran some comments from M.E. in Roanoke, who also got input from his wife, who is also M.E. in Roanoke. They are both anti-abortion. If readers would like to ask questions of the M.E.s, on the developments of the last 6-12 months, we'll run some of those questions and answers next week. It might also be useful to hear from a couple other anti-abortion readers, if any are willing to answer some questions. (Z)

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