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Judge Kacsmaryk vs. Mifepristone, again [1]

['This Content Is Not Subject To Review Daily Kos Staff Prior To Publication.']

Date: 2025-01-19

The Supreme Court auditioner, Judge Matthew Kacsmaryk, has once again stuck his nose into a case that was not in front of him. Just like Aileen Cannon tried to do in Florida.

The original case about Mifepristone was judge shopped to him in the U.S. District Court for the Northern District of Texas. Trump nominated him in 2017, and in 2019 sworn in.

If you thought that it was the end of the case when the Supreme Court ruled in June of 2024 that the Alliance for Hypocratic Medicine didn't have standing, you were wrong. It was suspected that another version of the case would finally head to the Supreme Court that did have standing. But Judge Kacsmaryk is stretching the law once again by allowing 3 states attorney generals to bring the case in his District Court.

As Accountable.US President Caroline Ciccone put it:

"This lawsuit highlights how broken our judicial system has become, with judge shopping on the Fifth Circuit reaching a dangerous new low. It's appalling that Missouri, Idaho, and Kansas are attempting to litigate their lawsuit in Texas, a state that is not party to this case. This blatant manipulation of the courts underscores a system that enables ideologically driven plaintiffs to bypass fair and impartial justice in favor of hand-picked judges who align with their extreme agenda."

"The fact that Judge Kacsmaryk, a Trump appointee, is allowing these states to exploit this broken system to further restrict reproductive rights is an attack on access to safe, effective medical care for millions of Americans. This kind of judicial abuse does not serve justice; it only benefits special interests determined to roll back hard won rights and freedoms."

The judge knows that the Department of Justice and the FDA will flip their positions in the case once Trump is in power. The current FDA and DOJ, however, say that the three states have no business in the Northern District of Texas and are asking the judge to dismiss the case.

Kacsmaryk isn't letting it happen. He directed the states on Thursday to file a new complaint, hand waving that he'll get to the venue controversy later. It's totally lawless. Kacsmaryk wants to keep alive the possibility that he can deliver a death blow to medication abortions and get on Trump's radar while he's doing it.

That's a very good assessment.

The three states filed their suit in October of 2024. They wanted a preliminary injunction against the FDA rule change. They wanted to go back before 2016 when the FDA under the Obama administration relaxed rules for prescription and delivery.

Before that, the drug had to be taken in front of a clinician in person, at the location of a certified prescriber, and limited to the first 7 weeks of term.

That was eliminated during the Obama administration, and the term was changed to 10 weeks. In addition, the manufacturer didn't have to report the adverse side effects and complications. Only deaths would need to be reported.

In 2021, the in-person dispensing requirement was eliminated, allowing it to be sent by mail. In 2023, another change was made to allow pharmacies to dispense the drug.

The states also wanted to restore the "day three" and "day 14" visits to a doctor. Restore the requirements of the prescriber to be a doctor. Basically, they wanted to gut the whole string of changes from 2016 to 2024.

Part of the state's lawsuit was invoking The Comstock Act of 1867. 18 U.S.C. § 1461. The ancient law made it illegal to ship obscene material or abortion related material through the United States Post Office or any other common carrier. The abortion pill was an obvious target. It's mentioned quite often in Project 2025. The law is already there. It just has to be enforced. Legislation in the House and Senate to repeal the act entirely, and others to remove the abortion related sections were introduced in June and July of 2024. They have gone nowhere so far, and the new Congress is unlikely to act on them.

Today, there are abortion providers in multiple states who admit that they're shipping Mifepristone to people in states where the drug is banned or restrict telehealth dispensing.

This is supposedly the reasoning behind the filing by the three states. That their regulations are being ignored.

They are requesting that the Comstock Act be enforced so they can "vindicate [their] interests in protecting [their] citizens."

The first case of the Alliance for Hypocratic Medicine versus FDA was filed in November of 2022. Judge Kacsmaryk ruled in their favor, and the FDA filed to contest it at the Supreme Court. It was decided by the Supreme Court in the FDA's favor in June of 2024.

On Oct. 11, 2024, Missouri, Kansas, and Idaho filed an "amended" complaint of the original Alliance for Hippocratic Medicine v. FDA. That's where the trail ends. A four month gap. None of the articles on his current ruling cover the time period. It's just October 11, 2024, and January 16, 2025.

I found the case number: 2:22-cv-00223-Z.

FDA filing 11/1/2024

The plaintiff's case must be dismissed because the Supreme Court held that they lack standing. The state's case must likewise be dismissed: A. The states can not intervene in a lawsuit that was never jurisdictionally proper. B. States complaints can not proceed as an independent suit because, among other reasons, the states lack venue. The states request for leave to amend should be denied for futility.

11/15/2024 Filing by Missouri, Kansas, Idaho

Defendants can not prove this Court's intervention order was "clearly erroneous." Even if the plaintiff never had standing to begin with, the state suit may still proceed.

11/19/2024 Filing by Missouri, Kansas, Idaho

Private plaintiffs notice for voluntary dismissal without prejudice.

So they asked Judge Kacsmaryk to dismiss the case so they could bring it back in a different way.

12/6/2024 Filing by FDA

Defendants are legally entitled to dismissal under rule 12 notwithstanding the Court's prior grant of intervention. The court never had jurisdiction over the plaintiff's claims. This court must comply with the venue statutes mandatory command.

1/16/2025 Filing by Missouri, Kansas and Idaho

Women face severe, even life threatening, harm because the federal government has disregarded their health and safety. FDA has the statutory responsibility to protect the health, safety, and welfare of all Americans by putting common sense safeguards on high-risk drugs. But, the FDA has failed in this responsibility by removing many of the safety standards it once provided to women using abortion drugs. Abortion drugs are dangerous. The FDA's own label estimates that 1 and 25 women who take abortion drugs will visit the emergency room.

If I listed them all, it would not only be boring to read but also impossible for me to input because there are 651 points that they make in their filing. I just gave you the starting four. There's so much repetition and whining that you would think it was written by Donald Trump.

The ACLU was especially unhappy with the refiling and the judge's decision. Maybe they went a little overboard, saying that women would have to drive hundreds or even a thousand miles in order to get a pill. But if you can't do telehealth and get the pills by mail, they're not wrong.

"The nation's leading medical authorities describe mifepristone as one of the safest medicines available, safer than many drugs in your medicine cabinet right now... Today's ruling means that President elect Trump will have an early opportunity to stay true to his word, or else instruct his Department of Justice to ignore the overwhelming scientific evidence and stop defending access to medication abortion. The American people will be watching." Julia Kaye - ACLU

Just days ago, a New Mexico Supreme Court ruling which appeared to go against pro-life Sanctuary City Ordinances in the state "thrilled" pro-life advocates...because the ruling acknowledged the validity of the federal Comstock Act…

The New Mexico Supreme Court ruling also mentioned a Justice Dept. opinion that the Comstock Act can't be used when "the sender lacks the intent that the recipient will use them unlawfully."

That means that the sender would have to know the laws of the state they are sending them to, and have a complete history of the recipient, in order to the have the intent to know the pills would be used unlawfully. That burden of that omniscience is ridiculous to require.

Sanctuary City Ordinances seemed to think the New Mexico loss still gave them enough to go to the US Supreme Court. Their reading that the Comstock Act was ruled valid, I think is flawed, and the Justice Dept. opinion about "unlawfully" makes that point. Seeing Sanctuary Citty Ordinance's glee in the decision, they will attempt to also get their case seen at the same time Judge Kacsmaryk is hearing the three states case.

In his Jan. 16th ruling, Judge Kacsmaryk said the three states were trying to intervene in the original Alliance Hypocratic Medicine suit to "provide greater factual support for the theories presented in the initial complaint."

After reading through enough of the filing by Missouri, Kansas and Idaho, it's a tired old rehash of unsupported claims purporting to be medical facts. Judge Kacsmaryk thinks it gives him an opening to rehear the case.

It all rests on what Trump's version of the FDA decides to do under his direction. Will he keep his promise to leave medicine abortion alone, or do an about turn?

Trump could just leave things alone and say he's letting it play out in the courts and that he's not intervening.

Cases resting on the 150 year old Comstock Act could also find themselves causing it to be struck down as unconstitutional by the US Supreme Court. Maybe. They only ruled on standing of the case the first time. After the Dobbs decision, what will they do in this instance?

It's obvious that Judge Kacsmaryk is going to rule in the states favor. Will there be an FDA and DOJ that take it to the Supreme Court? If not, there are the ACLU and others who will step up to fight. Same with the New Mexico case if the Supreme Court decides to hear it.

According to the experts, Judge Kacsmaryk has overstepped his authority in almost begging the case to be reheard. This could be another way the Supreme Court could rule in the case with a rebuke to the judge. Judicial Ethics Committee could be asked to look at the judge's actions. All of this is hypothetical in the current environment. In a case that should never have been revived, we'll see what happens in 2025.

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