Courts, Politics, and Judicial Activism

Republicans have long billed themselves as champions of states' rights and enemies of judicial activism. Yet a Texas district judge with no medical background just overturned the FDA's 20-year-old approval of the abortion drug mifepriston, thereby banning the drug throughout the United States. The judge, a Trump appointee, was carefully selected by forum shopping. Appeal of the case is through the ultra-conservative, Republican-dominated 5th circuit to the conservative, Republican-dominated U.S. Supreme Court that gave us the Dobbs decision overturning the twenty-year precedent of Roe v. Wade. It will be interesting to see how this turns out. What does this say about courts, politics and the rule of law in the U.S.? What will it tell us about how the U.S. is really governed?

 

Well, its not a States right if the rulling crosses the border. Who could support this, or venue shopping.

It tells us that Republicians will get smacked down.

Let us just see what happens on appeal, if when.

Voters do hold Republicians to account.

 

No it isn't. It was only a states right matter when the Supreme Court struck down Roe v Wade. Heads they win, tails we lose. The petitioner in the case, the Alliance for Hippocratic (Hypocritical?) Medicine, is an association of extreme right-wing anti-abortion activist groups. It did engage in forum shopping, filing the case (Alliance for in Hippocratic Medicine v. FDA) in the US District Court for the Northern District of Texas Amarillo Division, where Trump appointee Judge Mathew Kacsmaryk holds sway. Kacsmaryk previously a Christian right activist who worked for First Liberty Institute, a conservative legal group that engaged in many successful religious-based challenges in federal courts. He once signed a letter describing transgender as a "mental disorder". He has also claimed that gays are "disordered". In the case at hand, he ruled that the FDA erred in finding the drug safe, despite over twenty years of experience indicating it is safer than viagra and other drugs on the market, because the agency failed to take into account the psychological effects on the women using it. Those psychological effects are not recognized by most professional psychologists, but are a creation of the anti-abortion religious fringe.

Last time I looked, judicial review of decisions of federal regulatory agencies like the FDA was governed by the Administrative Procedure Act, which specifies the "arbitrary and capricious" test as the relevant criterion, along with "contrary to established procedures". Judges are supposed to show due deference to agency decisions and to overturn them only if they are irrational or fail to follow established procedures: "an action not based upon consideration of relevant factors and... an abuse of discretion or otherwise not in accordance with law or if it was taken without observance of procedure required by law." Natural Resources Defense Council, Inc. v. United States EPA, 966 F.2d 1292, 1297 (9th Cir. 1992). It is arguable that Judge Kacsmaryk rather than FDA is being arbitrary and capricious in his ruling, as shown by his vitriolic opinion. Greer Donley, associate professor at the University of Pittsburgh School of Law, commented: “It’s pretty clear from the tone that he wasn’t attempting in any way to be evenhanded in his language.” Mifepristone, he said, “ultimately starves the unborn human until death." Unborn human?

Anyhow, on the same day Judge Kacmaryck issued his decision, another Judge Thomas O. Rice from the United States District Court in the Eastern District of Washington decided a case by the Oregon and Washington Attorneys General joined by and other Attorneys General. The AGs are challenging the FDA’s decision to impose restrictions on prescribing and dispensing mifepristone through the Risk Evaluation and Mitigation System (REMS), claiming the restrictions on the dispensing of the drug imposed by the FDA are unnecessary and limit its availability. His ruling orders the FDA to maintain the current availability of mifepristone in the 17 states and DC, the plaintiffs in this case. Obviously, this ruling is inconsistent with the Texas court's decision. Probably the matter will be resolved by the U.S. Supreme Court. Judge Rice is an Obama appointee who previously blocked the Trump administration from stopping grants to a Planned Parenthood program that funded teen pregnancy prevention programs. The Justice Department and a mifepristone manufacturer have filed notices of appeal. DOJ is reviewing Rice's ruling.

Sure we could wait to see how it ultimately turns out, as we could with so many matters discussed on HF, but what's the fun in that? The case already provides issues that are worth discussing because of the light they throw on the role of politics in judicial matters.

Yes, they do, as the recent election for the Michigan Supreme Court bears out. By aggressively pushing abortion restrictions which are unpopular with women voters, Republicans are taking a big risk politically. But it seems to play well with the base.[/QUOTE]