Someday very soon, a single district court judge in Texas could order the Food and Drug Administration to withdraw its approval of mifepristone, cutting off access — nationwide — to the most widely-used abortifacient in the United States. (The earliest a decision is expected is next Friday, February 24.) If that happens, Sen. Ron Wyden (D-Ore.) says President Biden and the FDA have one option: openly defy the court’s order.
“You’ve got this one judge making a mockery of the rule of law, stomping all over the privacy rights of millions of American women,” Wyden told Rolling Stone.
The judge in question is Matthew Kacsmaryk , former deputy counsel at the far-right First Liberty Institute before he was installed on the federal bench by the Trump administration in 2019. Since then, Kacsmaryk has distinguished himself as one of the most nakedly partisan judges in the country, issuing rulings that often defy legal logic. (In December, to cite just one example, he issued a ruling, denounced for its many obvious legal errors, that has nonetheless gone into effect: it requires Texas teens to get their parents’ consent before obtaining birth control.)
But the case that would secure Kacsmaryk’s reputation as the most activist judge in America is the one before his court right now: Alliance of Hippocratic Medicine v. FDA, brought by a group of anti- abortion medical societies and doctors intent on challenging the FDA’s 2000 approval of mifepristone, the first medication in the two-step abortion pill.
The statute of limitations for challenging the approval of mifepristone has long since expired and, in the meantime, not only has Congress itself has affirmed the FDA’s approval of the drug, the FDA has amassed 23 years worth of evidence proving the medication’s safety and efficacy beyond the shadow of a doubt. For those reasons and others, the case should never have made it this far. But none of it may matter: Kacsmaryk has the power, if he chooses, to issue a de facto ban on the abortion pill across all 50 states.
“This is all about hot-wiring the system in order to produce an anti-abortion ruling — which is what his whole career has been about,” Wyden says of Kacsmaryk. “If he wanted to be a legislator, he should have run for office.”
The idea that a single district court judge could enjoin a federal law is a relatively recent phenomenon, Wyden points out. Until 1976, national injunctions could only be issued by courts composed of at least three judges. But that’s no longer the case, and since Kacsmaryk is the only federal judge in the Northern District of Texas, all any ideologically-motivated organization needs to do to stop a federal law they don’t like from being enforced is file their case in Amarillo.
From the floor of the U.S. Senate on Thursday, Wyden will call on the Biden administration to ignore the ruling he expects Kacsmaryk to issue. “The power of the judiciary begins and ends with its legitimacy in the eyes of the public,” Wyden says in a draft of the speech, shared in advance with Rolling Stone. “A judge’s rulings stand because elected leaders and citizens have agreed that abiding by them is right and necessary to uphold the rule of law. That’s part of the social contract in America. But the judiciary must uphold its end of the social contract too. It must follow the rule of law and earn the confidence of the American people continually, every day, every month, every year.”
In the speech, Wyden goes on to compare Kacsmaryk’s expected ruling to the Dred Scott decision, the infamous Supreme Court case that declared black Americans were not entitled to protections under the Constitution.
The gambit the Oregon senator is proposing has obvious risks. The Trump administration lost 78 percent of cases in front of the federal judiciary, according to an analysis by the Institute for Policy Integrity. Those court losses stymied large swaths of the president’s agenda and curbed the administration’s worst abuses, not to mention prevented his attempts to overturn the 2020 election. Wyden says he’s considered the implications. “I believe this is the right step to take. I gave it a lot of thought,” he says.
For Wyden, who chaired the very first Congressional hearing on the abortion pill in 1990, and has continued to champion access to the pill in three decades since, the potential consequences of complying with such an order like the one Kacsmaryk could issue are too great to contemplate. “What I’m concerned about are the privacy rights of more than 60 million American women,” he says. “This is a battle where too much is at stake.”
It’s rare for a federal agency to defy a court order, but not unprecedented. A 2018 article in the Harvard Law Review examining the issue of federal disobedience found “agency compliance with court orders is imperfect and fraught.” The same analysis found that the courts themselves have relatively few options to force an agency, like FDA, to comply with their orders: they can issue contempt sanctions in the form of fines, or threaten to throw the head of the agency in question in jail, as the D.C. district court did when Truman’s secretary of commerce refused to comply with an order in 1951. But such sanctions are exceedingly rare — there have been just a handful of examples in the last 50 years — and often, as was the case in Truman’s day, a higher court will swoop in to negotiate a settlement. (The commerce secretary, for example, never saw the inside of a cell.)