There are few better examples of the right-wing corruption of the federal judiciary than what happened yesterday down in Amarillo, Texas, when federal trial court “stayed” FDA approval of the abortion drug mifepristone. The ruling applies nationwide and on its face will ban the drug when it goes into effect in seven days.
I put “stayed” in scare quotes because the ordinary meaning of a stay is to put an action on hold, to prevent it while its validity or legality is evaluated. It’s to prevent some irreversible harm. But mifepristone was approved for use in the U.S. 20 years ago. There’s no serious or substantial question whether mifepristone is safe and effective for the purpose of inducing an abortion. And that is what the FDA evaluates. It’s something federal judges don’t normally evaluate and really aren’t in any position to.
This is simply yet another backdoor way to ban another legal method to abort a pregnancy in red states and blue.
A month ago Kate Riga wrote this primer on the new right wing judicial scam that made this possible. Call it the Amarillo Track. Right wing litigants who bring a case in Amarillo, Texas, are guaranteed a Trump judge who will hand down a nationwide injunction effectively changing the law for the whole country. In these judicial districts you’re guaranteed to get a crooked Trump-appointee judge, Judge Matthew Kacsmaryk, the one who handed down this decision.
Venue or judge shopping isn’t new. Both sides do it and have more or less forever. What’s different are a new breed of right wing judges’ willingness not only to approve the most baseless arguments but to issue nationwide injunctions which are now consistently left in place by the circuit courts, which are supposed to rein in these kinds of rogue actions. And the same pretty much applies to the Supreme Court. A decent amount of the time the stacked Supreme Court will back these decisions. But even when it doesn’t, they have the effect of changing the law for months or years while the case makes its way through the courts.
Again, a functioning, uncorrupted judiciary has a way to handle this kind of situation. The case is immediately appealed and shot down by the appellate courts. The decision itself may be reviewed on the normal, more leisurely basis. But the nationwide injunction and effective ban gets tossed. This is an important point since this really isn’t about Judge Kacsmaryk. There have been bad or rogue judges before. But his corrupt actions get backed up by the 5th Circuit which participates in his corruption more passively. And the same applies to the Supreme Court itself.
The final, additional point goes well beyond abortion. This action threatens to upend the entire system of pharmaceutical regulation in the United States for their short-term end of restricting abortion. Federal judges get the new ability to sit in review of the scientific analysis behind drug approvals. That opens the door to all sorts of chaos and decisions from judges who have zero background to evaluate such questions.