Rule of Law vs. Matthew Kacsmaryk

[Swerd]

Last Friday, a recent decision by US District Judge Matthew J. Kacsmaryk blocked the Food and Drug Administration’s (FDA) approval – more than 20 years ago – of an effective and safe medication, mifepristone, commonly used for medically induced abortions and treating miscarriages. I have to comment.

Contempt For the Law
Kacsmaryk simply ignored the six-year statute of limitations on FDA challenges and trashed any semblance of “standing”. He claimed that physicians who may treat patients with side effects from medical abortions prescribed by someone else are sufficiently injured by mifepristone to allow them to sue. By his twisted logic, Kacsmaryk would essentially abolish the standing requirement for lawsuits against drug approvals by creating a special exception out of thin air. That is not the law.

Just how far he would venture into lawlessness was revealed when the recently appointed Amarillo freelancer shrugged off all deference to the other branches of government to assert his personal power to undo approval of a medicine cleared for American patients some 20 years ago. The law defines a 6-year statute of limitations – not 20 years, and certainly not unlimited years.

This ruling could easily be used in the future to challenge and over-rule any medical or pharmaceutical decision made by the FDA. Is that a good idea? No! And no judge has the standing to do that to a law, passed by Congress, first signed into law in 1905, and amended by legislation several times since then.

Moreover, Kacsmaryk based his so-called legal argument on the 1873 Comstock Act, as he claimed it was enacted to outlaw “vice”. Comstock was largely invalidated by the Supreme Court’s 1965 ruling in Griswold v. Connecticut. That law, which included a wildly overbroad ban on mailing any “thing” (including printed literature) that could be used in (support of) an abortion, was an obvious government prior restraint on speech. Furthermore, the relevant provision of the Comstock Act has long been read to forbid the mailing of materials only for illegal abortions. This smacks of utter desperation to find any rationale for his desired result.

Sleight-Of-Hand on the Facts
Kacsmaryk’s ruling also attempted to make assertions as factual when they are scientifically baseless. He included the fiction that the FDA failed to consider ‘the intense psychological trauma and post-traumatic stress women often experience from chemical abortion’.

Inflammatory Partisan Language
Kacsmaryk’s written decision was laced with hostile and inflammatory partisan language. While this may be common for overtly antiabortion advocates, there is no place for such language in a legal decision. Does his language display a predisposed opposition to abortion? Formerly an attorney for the First Liberty Institute, a right-wing Christian law firm, Kacsmaryk has previously written that Roman Catholic doctrine concerning marriage, family and sexuality – including a hard line against abortion and even contraception – should be codified in American law. I’m not sure where he came up with that, but it certainly was not from the Founding Fathers.

Hypocrisy
Since as far ago as the 1960s, self-styled legal conservatives have said – with perfectly straight faces – that judges must not legislate from the bench. Was it all a lie? Of course it was. In his decision, Kacsmaryk – an unelected judge – leaves little doubt.

I suppose it is naive for me to be bothered by the rank hypocrisy of politicians, or to be disappointed at finding politicians dressed in black robes and deposited into the federal judiciary. After all, there is no law against hypocrisy, especially in politics. But it is a travesty – one that I cannot let go unremarked.

 

[lovinthehd]

Haven't followed this guy....purely political move, or male dominance or religious reasons particularly (or a mix?).

 

[Swerd]

@Mr._Clark – any thoughts?

 

[mtrycrafts]

Haven't followed this guy....purely political move, or male dominance or religious reasons particularly (or a mix?).

All of it.

 

[Swerd]

Haven't followed this guy....purely political move, or male dominance or religious reasons particularly (or a mix?).

In my worst fears, I wonder if this isn't the first shot at creating a theocracy, a religious state.

The First Amendment to the US Constitution lists six things about which Congress shall make no law. It appears below. I've added numbers to this text to show these six clauses:

Congress shall make no law 1) respecting an establishment of religion, or 2) prohibiting the free exercise thereof; or 3) abridging the freedom of speech, or 4) of the press; or 5) the right of the people peaceably to assemble, and 6) to petition the Government for a redress of grievances.​

Recently, in a case in Denver, the owner of a bake shop refused to make a wedding cake for a gay couple that was getting married. In a law suit, the baker argued that forcing him to make and sell the cake prohibited his free exercise of religion. This was upheld in appeals, but I'm not sure it was appealed as far as the Supreme Court.

Of course, this ruling would also nullify clause 1) of the First Amendment because it would, in essence, establish a state religion. One that can legally ignore anti-discrimination laws.

Some right-wing reactionaries aim to expand this argument using clause 2) 'Congress shall make no law … prohibiting the free exercise of religion', as a tool to overthrow other federal and state laws disliked by the right-wing reactionaries.

The recent ruling concerning the FDA's approved abortion drug mifepristone is only the first shot in this effort. I'm not saying this WILL HAPPEN, but I am saying there are right-wing religious zealots, some of whom wear black judge's robes, who aim to accomplish this.

 

[mtrycrafts]

I don't see how baking or not baking a cake is a religious act that is being prohibited.
Baker's faith is not a physical act, a mind thing. He is not restricted from attending his religious place of worshiping or praying while baking a cake and asking his supernatural being for forgiveness.
Yes, it is evident that some powerful people are after a theocratic dictatorship of a form.

 

[Mr._Clark]

@Mr._Clark – any thoughts?

I have not followed this case, but the district court decision was partially overturned on appeal and the government has asked the Supreme Court to step in.

I suspect that people will be arguing about abortion-related issues 100 years from now.

>>>The appellate ruling, from a divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit in New Orleans, said the pill, mifepristone, could remain available while the lawsuit, filed against the Food and Drug Administration by anti-abortion groups, proceeded through the courts.

In its order, the panel partly rejected a ruling from Judge Matthew J. Kacsmaryk of the Northern District of Texas, who declared last week that the F.D.A.’s approval of mifepristone in 2000 was not valid, in essence saying that the drug should be pulled from the market. . . .

After a federal appeals court imposed several barriers to access to an abortion pill late Wednesday night, the Justice Department announced on Thursday that it would seek emergency relief from the justices, asking them to block the ruling while a fast-tracked appeal moved forward.
The appellate ruling, from a divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit in New Orleans, said the pill, mifepristone, could remain available while the lawsuit, filed against the Food and Drug Administration by anti-abortion groups, proceeded through the courts.
In its order, the panel partly rejected a ruling from Judge Matthew J. Kacsmaryk of the Northern District of Texas, who declared last week that the F.D.A.’s approval of mifepristone in 2000 was not valid, in essence saying that the drug should be pulled from the market.

But the panel blocked a series of steps the F.D.A. took in recent years to ease access to the drug — including allowing it to be sent through the mail and prescribed by health care providers who are not doctors.

The appellate court said its ruling would hold until the full case was heard on its merits. But the Biden administration said it would ask the Supreme Court to step in.<<<

Abortion Is Back at Supreme Court’s Door After Dueling Orders on Pill (Published 2023)

The justices are poised to consider whether the most common method of ending pregnancies can be sharply curtailed in states where abortion remains legal.

www.nytimes.com

Nationwide (universal) injunctions have been controversial for as long as I can remember.

>>>Legal scholars generally agree on few major points. First, the term “nationwide injunction” is misleading. As professor Howard Wasserman suggests, a better name might be “universal injunction,” because the debate is about whether injunctions can require the federal government to cease enforcing a law against nonparties, not whether the injunctions should apply nationwide. Second, these injunctions are a relatively new phenomenon and have been used with increasing frequency over the last decade. Third, nationwide injunctions are nonpartisan — they have been sought by individuals on both sides of the political spectrum to put a stop to policies they oppose. Fourth, nationwide injunctions come with costs that courts should consider carefully before imposing them.<<<

Academic highlight: The debate over nationwide injunctions - SCOTUSblog

When, if ever, should courts bar the federal government from enforcing a law against anyone, not just against the plaintiffs in the case before them? Courts have issued these types of orders -- often referred to as “nationwide injunctions” -- with increasing frequency over the past decade. During Pr

www.scotusblog.com

 

[mtrycrafts]

....

I suspect that people will be arguing about abortion-related issues 100 years from now.

...]

I will bookmark this and revisit it for an update.

 

[MaxInValrico]

Last Friday, a recent decision by US District Judge Matthew J. Kacsmaryk blocked the Food and Drug Administration’s (FDA) approval – more than 20 years ago – of an effective and safe medication, mifepristone, commonly used for medically induced abortions and treating miscarriages. I have to comment.

Contempt For the Law
Kacsmaryk simply ignored the six-year statute of limitations on FDA challenges and trashed any semblance of “standing”. He claimed that physicians who may treat patients with side effects from medical abortions prescribed by someone else are sufficiently injured by mifepristone to allow them to sue. By his twisted logic, Kacsmaryk would essentially abolish the standing requirement for lawsuits against drug approvals by creating a special exception out of thin air. That is not the law.

Just how far he would venture into lawlessness was revealed when the recently appointed Amarillo freelancer shrugged off all deference to the other branches of government to assert his personal power to undo approval of a medicine cleared for American patients some 20 years ago. The law defines a 6-year statute of limitations – not 20 years, and certainly not unlimited years.

This ruling could easily be used in the future to challenge and over-rule any medical or pharmaceutical decision made by the FDA. Is that a good idea? No! And no judge has the standing to do that to a law, passed by Congress, first signed into law in 1905, and amended by legislation several times since then.

Moreover, Kacsmaryk based his so-called legal argument on the 1873 Comstock Act, as he claimed it was enacted to outlaw “vice”. Comstock was largely invalidated by the Supreme Court’s 1965 ruling in Griswold v. Connecticut. That law, which included a wildly overbroad ban on mailing any “thing” (including printed literature) that could be used in (support of) an abortion, was an obvious government prior restraint on speech. Furthermore, the relevant provision of the Comstock Act has long been read to forbid the mailing of materials only for illegal abortions. This smacks of utter desperation to find any rationale for his desired result.

Sleight-Of-Hand on the Facts
Kacsmaryk’s ruling also attempted to make assertions as factual when they are scientifically baseless. He included the fiction that the FDA failed to consider ‘the intense psychological trauma and post-traumatic stress women often experience from chemical abortion’.

Inflammatory Partisan Language
Kacsmaryk’s written decision was laced with hostile and inflammatory partisan language. While this may be common for overtly antiabortion advocates, there is no place for such language in a legal decision. Does his language display a predisposed opposition to abortion? Formerly an attorney for the First Liberty Institute, a right-wing Christian law firm, Kacsmaryk has previously written that Roman Catholic doctrine concerning marriage, family and sexuality – including a hard line against abortion and even contraception – should be codified in American law. I’m not sure where he came up with that, but it certainly was not from the Founding Fathers.

Hypocrisy
Since as far ago as the 1960s, self-styled legal conservatives have said – with perfectly straight faces – that judges must not legislate from the bench. Was it all a lie? Of course it was. In his decision, Kacsmaryk – an unelected judge – leaves little doubt.

I suppose it is naive for me to be bothered by the rank hypocrisy of politicians, or to be disappointed at finding politicians dressed in black robes and deposited into the federal judiciary. After all, there is no law against hypocrisy, especially in politics. But it is a travesty – one that I cannot let go unremarked.

Zealots have no respect for the law.