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Dozens of States Enter Court Fight over Abortion Pill

On Friday, dozens of state AGs filed amicus briefs in a court in Amarillo, TX, where a case is playing out in which a single Trump-appointed district judge, Matthew Kacsmaryk, might ban the abortion pill, mifepristone, nationwide. The plaintiffs, the Alliance for Hippocratic Medicine, claim that mifepristone is not safe, despite the FDA having approved it over 20 years ago and it having been used by millions of people with very few bad reactions. The ACLU said of the case: "In any rational universe it would be laughed out of court on multiple grounds." But Kacsmaryk's background is with anti-abortion and anti-LGBTQ groups, so he was pleased to take the case. That is why it was filed in his district, where he conveniently happens to be the only sitting judge.

Mississippi AG Lynn Fitch (R), the first female AG in Mississippi history and the first Republican AG there since 1878, argued in her brief that the FDA exceeded its authority when it approved mifepristone and besides, it is unsafe. AGs from 21 other red states cosigned her brief. New York AG Letitia James (D) filed a brief, also with 21 cosigning AGs, argued that a decision to ban mifepristone would have devastating consequences.

Kacsmaryk could rule any time and is expected to do so within a few weeks. His decision will be appealed immediately to the U.S. Court of Appeals for the Fifth Circuit, located in New Orleans. It is one of the most conservative circuit courts in the country. From there it is almost certain to go to the U.S. Supreme Court. That could set off an epic clash between the branches. with Joe Biden claiming that when Congress passed the Federal Food, Drug, and Cosmetic Act, it delegated the authority to approve or ban drugs to the Executive Branch and the Judicial Branch has no business second-guessing its decisions. If Kacsmaryk bans the pill nationwide, what is to prevent a liberal district judge in San Francisco from ruling that the Second Amendment's right to bear arms applies only to the smooth-bore muzzle-loading muskets used at the time the Second Amendment was ratified and does not apply to any arms not yet invented then?

In the event that Kacsmaryk rules against mifepristone and refused to stay his ruling, women seeking an abortion could use misoprostol, which is used to treat stomach ulcers and is not as tightly regulated as mifepristone. However, it is less effective. (V)

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