Conservatives Have a Sketchy New Legal Plot To Ban the Abortion Pill
Recently, the Food and Drug Administration approved mifepristone (a drug that can be used with msoprostol to induce abortions) for wider distribution. It can now be picked up, with a prescription from a doctor, at pharmacies willing to stock it, and it can be sent through the mail. While mifepristone was initially approved for use in the United States back in 2000, you had to see the doctor in-person to get it. The recent change is a welcome victory for reproductive rights, a rare case of authorities trying to expand access to abortion.
Access to medicine shouldn’t be controversial, and it wouldn’t be but for the Christian fundamentalist forces who’ve been emboldened by the right-wing takeover of the Judicial Branch and the Supreme Court’s revocation of reproductive rights. Now, at the very moment mifepristone has become one of the few means of securing widespread abortion access, these people have targeted it for destruction. Back in November, the inaccurately named Alliance Defending Freedom (ADF) brought a lawsuit against the FDA challenging its initial approval of mifepristone. The ADF claims that the FDA did not follow its own procedures when it approved the drug.
The lawsuit is so ridiculous that it hardly warrants discussion on the merits. First of all, the statute of limitations allows challenges to FDA procedures for only six years and mifepristone has been approved for over 20. Moreover, Congress passed an amendment to the Food and Drug Act in 2007 that revised the FDA’s procedures and deemed any drug previously approved by the agency to be in compliance with the new rules. There are also jurisdictional problems with the lawsuit. But even if you overlook all these technical legal hurdles, the ADF’s core argument—that the FDA failed to consider the dangers of mifepristone—is wrong. Mifepristone is safe, and no amount of Gregorian chanting from the self-appointed Uterus Inquisition Squad can prove it otherwise.
Unfortunately, we have to treat this incoherent nonsense masquerading as a lawsuit as a serious threat to abortion drugs because of the judge who recently got hold of the case: Matthew Kacsmaryk. Kacsmaryk is a Trump-appointed district court judge in Texas who is basically the bad guy from a Nathaniel Hawthorne novel made flesh. He was an anti-gay crusader for a Christian right law firm before Trump raised him up to be a judge. He claims that homosexuality is a “disorder.” He’s attacked the right to contraception and denounced the “sexual revolution” of the 1960s and ’70s. Senator Chuck Schumer said Kacsmaryk “has demonstrated a hostility to the LGBTQ community bordering on paranoia.”
Since rising to the bench, Kacsmaryk has functioned as a wish-fulfillment machine for the most wackadoodle right-wing causes and legal theories. He once ordered the Biden administration to reinstate Trump’s “Remain in Mexico” immigration policy—and then tried to do it again, even after he was overruled by the Supreme Court. In addition to the mifepristone case, Kacsmaryk will also be presiding over Children’s Health Defense v. Washington Post. That’s the ludicrous case in which death-cult anti-vaxxers allege that major media organizations violated antitrust laws and “conspired” to shut down anti-vax websites because the companies refused to publish or promote vaccine misinformation.
These cases have not ended up in front of Kacsmaryk by accident or bad luck. Right-wingers have actively sought out Kacsmaryk for their most dubious legal claims by means of the 21st-century version of “forum shopping.”
Forum shopping is an old legal trick wherein plaintiffs file their lawsuits in jurisdictions with laws or precedents most favorable to their claims. In the past, one of the more popular forms of forum-shopping saw lawyers trying to game out whether a state court or federal one would lead to a better outcome. They could do this because many state and federal laws overlap, and many corporations (and the federal government) can be sued in any state they do business in. Sometimes it’s advantageous to get a company in state court in front of a local jury (like Hulk Hogan’s successful attempt to destroy Gawker using Florida laws); other times it’s better to get a case removed to federal court (if, say, you are trying to sue an employer for racial discrimination in the South).
The Supreme Court tried to put a stop to this kind of forum shopping in 1938, in a case called Erie Railroad v. Tompkins. The so-called Erie Doctrine required that in cases where there is a question of whether to apply federal or state law, a federal judge must apply the law as it would be understood in the states where the judge resides. Nonetheless, forum shopping persists. Lawyers, for instance, still try to cherry-pick which states to file federal lawsuits in: You’ll never see a challenge to federal gun regulations filed in California, or a lawsuit against the fossil-fuel industry filed in Texas. Lawyers will always seek to take advantage of the laws most favorable to their clients or positions, wherever those laws happen to exist.
But that’s not what right-wingers are doing now. Instead, they are “judge shopping”—trying to take advantage of the fact that the judges themselves apply the laws differently based on which party appointed them and whether they have even a basic grasp of logic or fairness.
Generally speaking, district court judges—the trial judges in the federal system—are chosen at random from the available judges in a particular circuit. But some circuits or regions are small or have peculiar quirks when it comes to the assignment of judges. In the North District of Texas, judges are assigned based on their “divisions,” which break the region down to places like Dallas, Lubbock, and Amarillo. Kacsmaryk is the district judge for Amarillo and, by rule, is assigned every single federal case filed there. If you bring a federal case in Amarillo, you are guaranteed to get Judge Kacsmaryk. As Ian Milihiser put it on Vox, this rule makes Judge Kacsmaryk “one of the most consequential public officials in modern-day America.”
But Kacsmaryk is not the only judge right-wingers ask to make their dreams our nightmares. The Trump legal team tried successfully to get their stolen-documents case in front of a Trump appointee in Florida: Aileen Cannon. She dutifully issued pro-Trump rulings at odds with any plausible reading of the law. Meanwhile, Texas Attorney General Ken Paxton regularly files suit in the Southern District of Texas, Victoria Division, where the case is guaranteed to end up in front of Judge Drew Tipton, another Trump appointee who is a virulent anti-immigration crusader. Paxton did it again this week to challenge another Biden immigration policy.
Indeed, under Paxton, Texas uses a mash-up of old- and new-school forum shopping to get the judge it wants. In an amicus brief filed by the National Immigration Law Center in the case of US v. Texas and Louisiana, an immigration case, lawyers Steven Vladek and Max Wolson point out that Texas regularly removes cases to federal court to get specific judges, and it works. “In many of these cases, Texas has had a 95 percent (or greater) chance of drawing a specific judge. Those courts have repeatedly issued nationwide injunctions against a growing array of actions and initiatives undertaken by the Biden Administration.”
There are no laws, rules, or doctrines to stop this kind of behavior. Arguably, both conservative and liberal lawyers can (and do) engage in judge shopping at some level. What’s supposed to make the process fruitless are the circuit courts of appeal and, ultimately, the Supreme Court. The higher courts are supposed to step in and stop district court judges who get out over their ideological skis.
But certain courts of appeal, like that of the Fifth Circuit that presides over Texas, have been captured by right-wing extremists just like the rest of the Republican Party. More problematically, we’ve seen the Supreme Court act quickly to overrule liberal district court judges on emergency appeal but leave in place rulings from conservatives for at least as long as it takes for their cases to make it all the way up to the highest court through normal order. That’s a process that can take years, and sometimes span presidential administrations. In the meantime, people like Tipton are free to frustrate key parts of Biden immigration agenda, and people like Kacsmaryk are free to make gay-bashing a judicial art form.
This problem of judge shopping is not going away. That’s not just because Trump appointed a battalion of suspect judges who view the bench as the judicial velvet glove to the MAGA stone fist. It’s because any judge, anywhere, can be ripe for targeting, because every judge has some legal idiosyncrasy that might be exploited. We see this on the Supreme Court all the time (think Anthony Kennedy when it came to LGBTQ rights or Neil Gorsuch when it comes to Native affairs). If I were a federal judge, for instance, I would appear relatively normal—until somebody brought me an animal welfare case. At that point, I would adopt literally any crazy theory of rights or standing that would make Fluffy’s life better, prevailing precedents and normal methods of interpretation be damned.
My solution, my “Elie Doctrine,” would be to restore randomness to the judicial assignment process and break free of the antiquated notions of federalism that tie judges to their states. When you file a lawsuit, the judge should be picked from a pool of all federal judges in a state, and if we’re talking about a federal law, any judge in the country should be in the hopper. We live in the future. A judge from Alaska is just as capable of understanding how the FDA operates as a judge in Texas, and they can get there in half a day. They’re not going to melt. Indeed, our entire system of “circuit” courts arose from the fact that judges needed to travel to courthouses to preside in person over their cases. The circuits exist so that travel wouldn’t be too taxing for the judges, who lived in some central region of the district. But judges no longer need to take two horses and a palanquin hoisted by slaves to get from New Orleans to Amarillo. A Delta flight and an Uber can get anybody anywhere in this country in under 12 hours.
Another option is that judges could conduct a hearing via Zoom. Again, we have the technology. The idea that there’s only one judge who can physically preside over cases in the Texas Panhandle is a silly anachronism. We don’t have to live with a system so biased that plaintiffs are picking their own judges to maximize their chances of winning.
Of course, making such a change would require politicians in Congress to get serious about reforming the Judicial Branch. And that requires them to care about the Judicial Branch, understand how it is broken, and take tough votes to fix it—all over the objection of the party that benefits from the courts’ being broken.
Until Congress fixes this, it’s going to get worse. Right-wingers have figured out how to exploit the system, and even if liberals get in the game and exploit it back, that still leaves us with an exploited system where nobody can trust they’ll get an impartial arbiter.
I don’t know how Judge Kacsmaryk will rule on abortion pills or anti-vax conspiracy theories or any of the other inane lawsuits conservatives bring before him. I just know that right-wingers think they have a better chance to prevail if they get into his courtroom, and they have manipulated the system to do just that. That’s not something that would happen in a functioning judiciary. Laws are not supposed to be dependent on whether a lower-court judge wakes up on the bigoted side of the bed or the misogynist side of the bed.
Copyright c 2023 The Nation. Reprinted with permission. May not be reprinted without permission. Distributed by PARS International Corp.
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Elie Mystal is The Nation’s justice correspondent and an Alfred Knobler Fellow at the Type Media Center. His first book is the New York Times bestseller Allow Me to Retort: A Black Guy’s Guide to the Constitution. He can be followed @ElieNYC.
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