Banning Abortion Pills: Choosing Between Secularism and Moralism
200 mg mifepristone and 800 μg misoprostol, the typical regimen for early medical abortion. Photograph Source: VAlaSiurua – CC BY-SA 4.0
How a single federal judge could upend twenty years of science.
Texas Federal District Judge Matthew J. Kacsmaryk recently banned prescribing and distributing the abortion pill mifepristone as unsafe. However, after a four-year review, the Food and Drug Administration (FDA) certified the pill safe in 2000. Its status as a safe drug was maintained across five presidential administrations until this one Judge wouldn’t accept that decision.
Judge Kacsmaryk’s heart rather than science seems to lead him to ban mifepristone. In his ruling, he refers to the fetus as an “unborn human” or “unborn child.” These are not medical terms but moral statements.
Language reinforces our beliefs into reality. Kacsmaryk used terms to define abortion as a violation of a moral code. However, he and similar moralist judges are careful not to morally condemn aborting a fetus. If they did so, they would pierce their veil of claiming that they pursue secular justice.
Six years before his ruling banned the abortion pill, we could see him as an advocate for a Christian morality code. Washington Post reported that Kacsmaryk had submitted an article to a Texas law review criticizing Obama-era protections for those seeking abortions.
He argued that the Obama administration had discounted religious physicians who “cannot use their pens to prescribe or dispense abortifacient drugs designed to kill unborn children.” In other words, the doctors’ religious freedom would be violated if a woman asked them not to give birth even if they were rapped. The doctors were the victims, not the pregnant woman.
Kacsmaryk must have realized that his logic might not fly at his Congressional confirmation hearings. So, although he had initially been listed as the article’s sole author, he removed his name and replaced it with two other attorneys from the First Liberty Institute, where he was the deputy general counsel.
First Liberty claims to be the nation’s largest legal organization focused exclusively on defending the religious freedom of individuals and businesses. Their attorneys sue the government to stop regulations that force their doctor clients to violate their religious beliefs, like allowing women control over their bodies. However, Kacsmaryk, ignoring his years working to overthrow abortion procedures, said before his Senate confirmation hearing in 2017, “As a judge, I’m no longer in the advocate role.”
He is seen as fair by conservative moralist groups because his decisions have been against sustaining liberal civil rights laws. That reputation attracted the Christian legal firm Alliance Defending Freedom to have their client, The Alliance for Hippocratic Medicine (AHM), file a lawsuit against the FDA in Texas’s North District Court.
They did so because Kacsmaryk was the only judge in that sector to try their case. Like any federal judge, his rulings could have nationwide implications. However, Defending Freedom would not say whether they filed their suit against FDA in Amarillo, TX, because Kacsmaryk was the judge.
It appears that way since (AHM), was a Tennessee-based organization until it moved to Amarillo three months after the Dobbs decision. Shortly after relocating, AHM filed its lawsuit against FDA.
Since Kacsmaryk’s ruling lacked a verified scientific justification, FDA appealed his decision to a three-judge Fifth Circuit panel covering Texas, Louisiana, and Mississippi.
The Defending Freedom law firm also understood that an appeal to Kacsmaryk’s ruling would go to the Fifth Circuit Court, which has Trump-appointed judges. Two of them were on the circuit courts’ three-judge panel that heard FDA’s appeal. They backed Kacsmaryk’s decision that mifepristone is unsafe to use.
Although the Circuit Court’s decision was unsigned, the record indicates that only two of the three judges favored a total ban on mifepristone. However, their unanimous decision reintroduced three medically unnecessary measures: 1) requiring in-person visits with doctors, 2) rolling back the availability of the pills from the first ten weeks of pregnancy to seven weeks, and 3) barring dispensing them by mail.
The DOJ accused the Circuit Court’s ruling of ignoring the large body of research showing that mifepristone is safe and effective. For example, the American College of Obstetricians and Gynecologists analyzed hundreds of published studies and found that “serious side effects occur in less than 1% of patients, and major adverse events — significant infection, blood loss, or hospitalization — occur in less than 0.3%.”
Consequently, the Department of Justice (DOJ) filed an emergency request to preserve the F.D.A.’s prior approved use of mifepristone with the Supreme Court. Their appeal to SCOTUS notes that to “the government’s knowledge, this is the first time any court has abrogated FDA’s conditions on a drug’s approval based on a disagreement with the agency’s judgment about safety.”
Without dismissing this case, by banning or restricting a prior FDA-approved drug, future challenges could be made to any FDA-approved drug in court. For example, businesses could easily sue to delay the distribution or deny a competitor’s medication based on minimal data. In addition, the development time for releasing new drugs would likely be significantly extended to gather additional clinical trials to reply to pending lawsuits.
Since the Supreme Court’s Roe vs. Wade decision to legalize abortion, one of the largest groups in our nation, devout Christians, has worked toward establishing their moral code of opposing abortion as the nation’s moral code, regardless of religious affiliation.
The tension between justifying our laws within a secular or moralistic framework is at the core of determining how our legal system shapes our culture. The temporal and moral worlds see reality differently, but they do overlap. Secularism is not amoral, nor is morality irrational. Although both could go down those roads if not constrained by the norms of a democratic society seeking to establish rational decisions.
The Supreme Court punts but remains in the game
The Supreme Court, in replying to DOJ’s motion to toss out the lower courts’ rulings, choose to reject the lower-court restrictions to suspend mifepristone from the market and impose significant accessibility barriers to allow the lawsuit to continue.
Their decision came in a one-paragraph order, with two dissenting justices: Clarence Thomas and Samuel A. Alito Jr. However, up to two other judges could have disagreed with the order without public disclosure since the order was unsigned. Thomas did not explain his dissent, but Alito provided a detailed three-page analysis that attacks FDA strictly on procedural grounds.
Alito’s dissent is required reading to understand how morality will never be discussed in any decision to support eliminating access to this abortion pill. He also avoids attacking the validity of FDA’s science and settles for merely noting that there is no real threat of harm from an expected short appeal period.
If Alito’s dissent foreshadows the arguments that the Circuit Court will apply to sustain Kacsmaryk’s decision, the final decision comes down to who will be on their panel to hear the FDA’s case. It may not be the same judges that heard FDA’s initial motion.
However, if the panel has a majority of Trump appointees, they would be expected to reach a similar conclusion. If they overreach and base their decision on FDA’s science, they could be on shakier ground for winning a Superior Court ruling if it decides to hear an appeal.
Circuit panels generally consist of three judges, supposedly selected at random. A Cornell Law Review article by a professor found that rarely are the judges chosen randomly. Since the Fifth Circuit Court has four Democrat-appointed to twelve Republican-appointed judges, it is the most conservative appeals court.
It turned even further right with Trump appointing six of the judges. If a three-judge panel is used to hear the FDA case, two of the three will likely be Trump appointees, having the same makeup as the original panel that heard FDA’s appeal.
If the Circuit Court denies FDA’s appeal or overrules Kacsmaryk’s decision, one of the parties will undoubtedly appeal to the Supreme Court. But, again, Trump-appointed judges may hold sway; half of the six Republican-appointed justices are moralists selected by Trump.
The Supreme Court conservative Justices’ would be headed toward a strict moralistic application of the law. Following Alioto’s logic, they would prefer to define their ruling around procedural issues, not morality. If the Circuit Court’s decision questions the science used as a basis for their ruling, the SCOTUS justices could be split on how they rule on the appeal of that court’s finding.
Whatever the outcome, the conservative Supreme Court Justices’ decision to deny this pill to women would reflect their unwavering Christian beliefs. Acknowledging that the US can harbor a mixture of religious thoughts and practices without one faith being morally superior will not be present in their decision.
No government cannot decree that a democratic society must make a perfect moral world; it can only make a world that regulates harmful behavior toward other citizens. That is why Congress must remove this issue from the judicial system and codify women’s rights to control their bodies.
APRIL 25, 2023
The Fight Over a Pill – and the Freedom of Women
The Supreme Court on Friday preserved women’s access to a drug used in the most common method of abortion, rejecting lower-court restrictions while a lawsuit continues.
Women seeking to end their pregnancies in the first 10 weeks without more invasive surgical abortion can take mifepristone, along with misoprostol.
According to an AP report, abortion opponents filed a lawsuit in Texas in November, asserting that the FDA’s original approval of mifepristone 23 years ago and subsequent changes were flawed. U.S. District Judge Matthew Kacsmaryk ruled in their favor on April 7, revoking FDA approval of mifepristone. The judge gave the Biden administration and Danco Laboratories a week to appeal and seek to keep his ruling on hold.
Responding to a quick appeal, Judges Andrew Oldham and Kurt Engelhardt said the FDA’s original approval would stand for now, but most of the rest of Kacsmaryk’s ruling could take effect while the case winds through federal courts.
As AP notes, “The challenge to mifepristone is the first abortion controversy to reach the nation’s highest court since its conservative majority overturned Roe v. Wade 10 months ago and allowed more than a dozen states to effectively ban abortion outright. In his majority opinion last June, Alito said one reason for overturning Roe was to remove federal courts from the abortion fight. “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” he wrote.
According to Webmd, Mifepristone (also known as RU 486) is used to end a pregnancy during the early part of a pregnancy. It is used up to week 10 of pregnancy. Mifepristone blocks a natural substance (progesterone) that is needed for a pregnancy to continue. It is usually used together with another medicine called misoprostol. Mifepristone must not by anyone with a rare abnormal pregnancy that is outside the womb (ectopic pregnancy). It will not end the pregnancy in this case.
And according to Planned Parenthood, “Mifepristone is the first of two medications used in a medication abortion (also known as the ‘abortion pill’). Mifepristone has been safe and legal in the United States since the U.S. Food and Drug Administration (FDA) approved the brand name Mifeprex nearly 20 years ago. In April 2019, the FDA approved the first generic form of mifepristone, following a review of the evidence that medication abortion is a safe, effective way to end an early pregnancy — with a safety record of over 99%.”
“As a result of the Supreme Court’s stay, mifepristone remains available and approved for safe and effective use while we continue this fight in the courts,” US President Joe Biden said in a statement. “The stakes could not be higher for women across America. I will continue to fight politically-driven attacks on women’s health.
“But let’s be clear – the American people must continue to use their vote as their voice, and elect a Congress who will pass a law restoring the protections of Roe v Wade.”
This new case, surely one among many to come, demonstrates the need to strengthen the rights of women to receive an abortion if they so desire and in the manner they wish. The infuriating Republican intrusion on the rights of women in America should serve as a reminder that freedom and liberty is subjective.
Women and girls in today’s society enjoy many more rights than we used to, but we still have a long way to go. Women in America still face various forms of disadvantage despite significant progress in advancing gender equality. Women continue to be paid less than men for doing the same work, with the gender pay gap being around 82 cents to every dollar earned by men. This gap is even larger for women of color, such as Black and Latina women.
Women are also underrepresented in leadership positions and political office. We make up only a small fraction of CEOs, board members, and elected officials, despite comprising nearly half of the workforce and population. This lack of representation can limit the perspectives and ideas that are brought to decision-making tables.
Gender-based violence also remains a pervasive issue in America. One in three women experience physical or sexual violence in their lifetime, and the vast majority of these crimes are committed by men. Women also face a significant risk of sexual harassment in the workplace, which can lead to a hostile work environment and limit their career opportunities.
With so many issues still at stake, women cannot allow a lower court to block our rightful access to an abortion pill we have been taking for years. Our very freedom depends on it.
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