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Why a far-right judge’s abortion pill ruling is so dangerous

As a Trump-appointed judge takes steps to block access to a common abortion drug, it’s worth reflecting on the scourge of a corrupted judicial process.


Throughout Donald Trump’s presidency, the Republican White House embraced the “Friday night news dump” with unnerving enthusiasm. If it was a Friday night ahead of a holiday weekend, the public was even more likely to see — or if the strategy was executed effectively, not see — a provocative announcement.

As we were reminded late last week, Trump-appointed judges occasionally make use of the same tactics. NBC News reported on an important ruling that was issued late on Good Friday, during Passover, ahead of a holiday weekend.

In an unprecedented move, U.S. District Judge Matthew Kacsmaryk on Friday suspended the Food and Drug Administration’s longtime approval of key abortion pill mifepristone, though he gave the government a week to appeal his decision. If the ruling does eventually go into effect, it would curtail access to the standard regimen for medication abortion nationwide.

As a Slate analysis added, the judge’s order marked "the first time in history that a court has claimed the authority to single-handedly pull a drug from the market, a power that courts do not, in fact, have.”

For those unfamiliar with mifepristone, the FDA approved it nearly a quarter of a century ago, be used as part of a two-step process to terminate unwanted pregnancies up to 10 weeks. The drug has proven to be safe, effective and commonly used.

And according to a Trump-appointed judge in Texas, access to this safe, effective and commonly used medication must be curtailed across the country.

After Republican-appointed justices on the U.S. Supreme Court overturned Roe v. Wade, one of the more frequently used talking points on the right was that the fight over reproductive rights would now simply be a state-by-state issue. The demise of the Roe precedent wouldn’t impose a new national policy, conservatives said, because states that support abortion rights could continue to implement progressive policies.

Kacsmaryk’s ruling was a timely reminder that this talking point was, and is, a sham.

As the legal and political worlds absorbed Friday night’s developments, the broader legal landscape is admittedly complex. As MSNBC colleague Jordan Rubin explained, the ruling out of Texas roughly coincided with the release of a rival ruling from a district court in the state of Washington, which came to the opposite conclusion. That ruling ordered the FDA not to alter the availability of mifepristone, though it applies only to the states involved in this specific litigation, and not the whole country.

The next step will be a series of appeals, and it’s increasingly easy to believe that with competing decisions in competing courts, the matter will need to be resolved by the U.S. Supreme Court — filled with the same justices who overturned Roe less than a year ago.

The stakes are dramatic, not only because of abortion, but also, as The New York Times reported, Kacsmaryk’s ruling “poses threats to the U.S. government’s regulatory authority that could go far beyond one drug.”

But as the process plays out, it’s worth pausing to reflect on the scourge of a corrupt judicial system.

I’m not referring to graft or bribery, but rather an ideological corruption that weakens the judiciary and the public’s capacity to have faith in the integrity of the courts.

Several months ago, in a report for Vox on an entirely separate case, Ian Millhiser explained that Kacsmaryk “is one of many Trump appointees to the federal bench who appears to have been chosen largely due to his unusually conservative political views,” as reflected by his work as “a former lawyer at a law firm affiliated with the religious right.”

In a 2015 article, Kacsmaryk denounced a so-called “Sexual Revolution” that began in the 1960s and 1970s, and which “sought public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity and even the unborn child must yield to the erotic desires of liberated adults.”

The Trump White House tapped him for a lifetime position on the federal bench — not in spite of his unsubtle background as a far-right ideologue and activist, but because of it. Kacsmaryk was then confirmed to his lifetime judicial position by 52 Senate Republicans — who, like their partners in the Trump White House, appreciated Kacsmaryk’s far-right record.

At that point, the conservative activist got to work engaging in conservative activism. This was made even easier by the way in which the local system is currently structured. From the aforementioned Millhiser report:

[T]hanks to an obscure rule governing which federal judges are assigned to hear cases in Texas federal courts — 95 percent of civil cases filed in Amarillo, Texas’s federal courthouse are automatically assigned to Kacsmaryk — this prurient man is now one of the most powerful public officials in the United States. Any conservative interest group can find a federal policy they do not like, file a legal complaint in the Amarillo federal courthouse challenging that policy, and nearly guarantee that their case will be heard by Kacsmaryk.

And so, opponents of abortion rights brought their ridiculous case to the judge’s courtroom. He came to the conclusion that everyone already knew he’d reach, issuing a decision that’s been widely panned as a “travesty“ and “indefensible.”

Kacsmaryk is not only indifferent to the criticisms, he also can take confidence in knowing that his ruling will be appealed to the Fifth Circuit — where Republican-appointed jurists dominate on an appellate bench that is “as conservative a federal appeals court as any of us have seen in our lifetimes.”

This is not how a fair and impartial court system is supposed to work.