An unprecedented preliminary ruling by a federal judge in Texas invalidating the Food and Drug Administration’s approval of the abortion pill mifepristone signals a new chapter in the battle over reproductive rights in the United States, legal experts say.
Several experts said Monday the order by Matthew J. Kacsmaryk, a Trump appointee long critical of Roe v. Wade, is unlike any legal ruling they have seen in their careers and is a warning sign that the courts are becoming dangerously politicized at an alarming rate.
Law professionals were quick to scrutinize the order, highlighting what they called “incendiary” language and the likelihood such charged arguments could stoke further divisions on the contentious issue.
“It’s just not a judicial opinion. This was a screed. The language was completely incendiary. He talked about doctors as ‘abortionists.’ He described the medication as ‘starving the unborn human,’” said Nancy Gertner, a retired federal court judge and a professor at Harvard Law School. “This is someone who believes that he could implement his views directly and conclusively in anything he does.”
The Texas opinion applies nationwide and marks the first time that a judge has suspended the longstanding FDA’s approval of a medication. Mifepristone was cleared by the FDA in 2000. Kacsmaryk stayed his own order for a week to allow the federal government time to seek review from the 5th Circuit.
Shortly after the Texas order was issued Friday, a federal judge in Washington issued an order in a separate case, ruling that the FDA make no changes to the availability of mifepristone in the 17 states and the District of Columbia that filed the suit.
The Justice Department is appealing the Texas ruling.
The conflicting preliminary injunctions, experts said, almost guarantee that the legal standoff will escalate to the Supreme Court. The Texas order could further imperil access to abortion even in states where the procedure is legal less than a year after the high court overturned Roe, ending the constitutional right to abortion.
Laurence Tribe, a constitutional scholar and Harvard Law School professor, lambasted Kacsmaryk’s opinion, saying in an e-mail that it was full of “feverish rhetoric” and lacking in what he would “recognize as legal reasoning.”
“None of the texts or precedents this judge invokes stand for the propositions that he uses them to support, and his several lines of what can only loosely be described as ‘thought’ fail to connect logically or legally,” Tribe said, calling it a “truly incompetent opinion [that would] receive a failing grade as an answer to a law school exam.”
Kacsmaryk wrote the “opinion as if he is a crusader on the front line in the antiabortion wars,” said Christopher Robertson, a law professor at Boston University, pointing to the judge’s use of language such as “unborn humans” and falsely claiming the drug application was for “population control.”
“Recall that up until just a few months ago, the antiabortion refrain was ‘let the states decide,’“ he said. “In this new wave of the antiabortion wars, they are seeking to even limit access here in Massachusetts.”
Similar to other cases emerging from courtrooms in Texas, Robertson said, the litigants in this lawsuit are attempting to use “technical legal arguments to advance [a] culture wars issue,” and in doing so are placing “the entire FDA approval process for all sorts of drugs in jeopardy.”
“The FDA-approval merely allows doctors to prescribe the drug and patients to take the drug, if both doctor and patient choose to do so,” he said. “It’s not clear at all how they can be harmed by being allowed to make a choice, but Judge Kacsmaryk just writes himself into a corner trying to avoid that clear implication.”
Mary Ziegler, a professor of law at the University of California Davis, noted how the rhetoric in the opinion was heavily lifted from the antiabortion movement, including the way Kacsmaryk cited studies from activists affiliated with the antiabortion movement.
By doing so, she said, Kacsmaryk is indicating that one side of the debate has a monopoly on the information he is willing to trust, even if that research has been rejected by the American Medical Association. “And so if that’s what passes for expertise or evidence, that too makes it feel like a movement-aligned decision,” Ziegler said.
The judge also refrained, Ziegler said, from acknowledging that the issue evokes strong feelings on both sides and that it is his responsibility as a judge to respect all views regardless of his own stance. Rather, she noted, Kacsmaryk presented talking points used by abortion opponents as “statements of fact.”
Gertner agreed that the rhetoric used by Kacsmaryk belongs in a “document that is political,” but not a judicial decision.
Still, Gertner believes that because the order is “so poor as legal reasoning” the Supreme Court will not ultimately endorse it. But she said she is “terrified about the impact” of the ruling on the public’s trust in the courts, which has already been eroded in recent years.
The decision from Texas, she said, only foreshadows more rulings political in nature down the line.
“If you have a Supreme Court that is open to overturning precedent, that has implications. It means advocacy groups are prepared to abandon any settled precedent,” Gertner said. “And district court judges, who at least are supposed to be bound by the existing precedent until it’s changed, are more likely to be open to anything.”