Sen. Ron Wyden (D-OR) called on President Joe Biden Thursday to emulate Abraham Lincoln and ignore the likely coming nationwide ban of abortion drug mifepristone, expected to be handed down soon by a federal judge the senator described as an “anti-abortion zealot.”
“This wouldn’t be the first time a political leader or elected official has called on others to ignore a court ruling,” Wyden said on the Senate floor. “Abraham Lincoln did it after the Supreme Court issued the historically egregious Dred Scott ruling, which held that Black people could never be citizens of the United States.”
In the case before U.S. District Judge Matthew Kacsmaryk in Texas, a group of anti-abortion medical organizations are trying to get the abortion drug banned nationwide, challenging the Food and Drug Administration’s initial approval of the medicine over two decades after the fact. They base much of their argument on a heap of speculation, falsely inflating the dangers of mifepristone — one of two drugs often collectively referred to as the abortion pill — and offering that it might cause women with adverse effects to need emergency medical care, taking away resources from other patients.
“Legal logic be damned, the plaintiffs know Judge Kacsmaryk is sure not gonna let pesky obstacles like precedent or science or standing get in the way of the agenda they share,” Wyden quipped.
Kacsmaryk dependably delivers for right-wing litigants, and has made himself a frequent antagonist of the Biden administration. And as Wyden points out, there’s not much salvation to be found in the appellate process for those supporting abortion access: Kacsmaryk’s court is governed by the ultra-conservative Fifth Circuit Court of Appeals, the last stop before the right-wing U.S. Supreme Court.
“So here’s what must happen if and when Judge Kacsmaryk issues his nationwide injunction halting access to mifepristone: President Biden and the FDA must ignore it,” Wyden said.
“The FDA needs to keep this medication on the market without interruption regardless of what the ruling says,” he added.
The White House did not immediately respond to TPM’s request for comment.
Wyden described the process of “court washing,” where right-wing activists home in on judges likely to be sympathetic to their cases, confident that they’ll get the decision they want. Others have called the dynamic “court shopping,” where litigants make sure to file in a district that’ll put the case in the hands of such a judge.
Texas is an easy place to do it, as every case filed in Amarillo goes to Kacsmaryk’s bench. Combined with a federal trial judge’s ability to issue a nationwide injunction from that one case, right-wing activists have an easy path to national bans.
Wyden isn’t the only one who’s noticed.
In a recent filing in a case unrelated to the mifepristone challenge — a dispute over Labor Department regulations regarding retirement funds — the Department of Justice asked for the case to be transferred out of Kacsmaryk’s courtroom.
“Plaintiffs’ and other litigants’ ongoing tactic of filing many of their lawsuits against the federal government in single judge divisions, or divisions where they are otherwise almost always guaranteed to procure a particular judge, undermines public confidence in the administration of justice,” the DOJ wrote.
Kacsmaryk is very unlikely to grant the motion.