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Washington judge smacks down Kacsmaryk, upholds abortion pill

Ahead of a Supreme Court showdown, the Obama appointee told the FDA it can't alter the abortion drug's availability.


In the legal battle over abortion drug mifepristone, we have conflicting rulings — and a bit of a judicial smackdown. The Supreme Court could step in as soon as Friday, with the Justice Department and the drug's manufacturer pressing the court to do so. Here's a quick recap of what happened and where we're going.

The divergent rulings come from Donald Trump-appointed Judge Matthew Kacsmaryk in Texas, who last week tried to suspend the Food and Drug Administration's 2000 approval of mifepristone, and the other is from Barack Obama-appointed Judge Thomas Rice in Washington state, who issued a conflicting ruling that same day. Kacsmaryk's extreme ruling was narrowed Wednesday by an also-extreme 5th Circuit Court of Appeals ruling, which said mifepristone can stay on the market but with restrictions, including no more access to the drug via mail.

When Kacsmaryk entered his order April 7, he paused it from taking effect for a week, so the narrowed version of his ruling could take effect at the end of Friday, which the DOJ and drugmaker Danco are trying to stop from happening with their Supreme Court filings.

Emphasizing the conflict between the two rulings, Rice issued a further order Thursday, clarifying that his ruling blocks the FDA from altering mifepristone's availability, regardless of the Texas court and the 5th Circuit. Rice's ruling only applies in the jurisdictions involved in that case — 17 states and the District of Columbia — but it's still in tension with Kacsmaryk's order (narrowed by the 5th Circuit), raising questions of how the FDA will resolve it absent further resolution at the Supreme Court.

In clarifying his order, Rice effectively called out Kacsmaryk's ruling that purports to have nationwide effect. The Obama appointee cited precedent that nationwide injunctions are "associated with forum shopping, which hinders the equitable administration of laws." It's a particularly apt reference in this situation, given that the anti-abortion plaintiffs brought their case to the Texas court where Kacsmaryk serves (his anti-abortion bona fides are well established after all). Indeed, it's more than mere forum shopping in this case — which would be bringing a case to a certain district where there's a good chance at getting a favorable judge — but judge shopping, where you're putting a case before a certain judge.

So Rice's order functions as a potent critique of the Trump judge in Texas, who has clearly hindered "the equitable administration of laws," or at least has tried to do so. We'll see if the Supreme Court lets him and the 5th Circuit succeed.