One of the biggest dangers our country faces today is the creeping fascism of people like Ron DeSantis, Donald Trump and other right-wing extremists. So far, most of the damage has been confined to the conservative red states, but that may not always be the situation. In a current anti-abortion case, the results would affect every state – even those that have upheld a woman’s right to choose.
An anti-abortion group, The Alliance Defending Freedom, has filed a suit that would force the FDA to revoke its approval of mifepristone, claiming it is unsafe. Mifepristone is one part of a two-drug regimen that can be taken in the first 10 weeks of a pregnancy to end it. This is currently the most common form of abortion used in the country.
A judge in Texas is preparing to make a ruling in this case, but just because he’s in Texas doesn’t mean his decision would only impact Texas. If he rules the FDA must revoke its approval, the pill would become unavailable in the entire US. According to Bloomsburg Law:
Medical associations have defended the safety of mifepristone, a drug that studies show is safer than and sends fewer people to the emergency room than Tylenol and Viagra. Many attorneys say ADF’s argument is without merit, though note Kacsmaryk’s track record suggests he’s likely to give a sympathetic ear.
“This would be the first time a court has ever taken a drug off the market over the objection of the FDA and a drug sponsor. It’s just totally unprecedented,” said Greer Donley, a law professor at the University of Pittsburgh.
Of particular concern in this instance is that the ADF chose to file their petition in this particular court in order to get this particular judge, Matthew Kacsmaryk, who is a Trump appointee and known to be sympathetic to conservative causes.
The federal trial court judge in the Northern District of Texas has halted federal action meant to protect asylum seekers and tossed rules expanding teen access to birth control. He also rejected a policy that stopped doctors from discriminating against people based on their sexual orientation or gender identity.
Kacsmaryk now has the opportunity to strip a common drug used in medication abortions of its federal approval and block regulators from enforcing a Labor Department rule that permits private-sector employers to consider environmental, societal, and governance factors when choosing investments for 401(k) plans.
Deliberately filing a case in a district where the plaintiff is most likely going to get a sympathetic judge is known as judge shopping. Kacsmaryk’s court is popular for conservatives to file in, not only because of his own conservative leanings, but because any appeals of his rulings will go to the 5th District Court, which is also notoriously conservative, and from there it goes to our conservative-loaded Supreme Court.
The courts are likely to become one of the biggest battlegrounds in the fight against creeping fascism. President Biden needs to push through as many judicial nominations as he can while we hold the Senate to counter the large number of judged Trump was able to appoint. As for judge shopping, unfortunately, I don’t know of a solution for that. Hopefully, someone more educated in the law will have some ideas.