Ruling 7-2 April 21, with Associate Justices Samuel Alito and Clarance Thomas dissenting, the Supreme Court sent a powerful message to the New Orleans-based 5th
Circuit Court of Appeals when they hear the case May 17. A plurality of liberals and conservatives joined forces to tell the appeals court that Amarillo, Texas-based District Court Judge Matthew Kacsmaryk made a big legal blunder trying to ban the abortion pill Mifepristone when he ruled April 7. Kacsmaryk thought the judicial branch could pass judgment on the Executive power’s FDA, the federal agency for drug approval. Reversing FDA approval overstepped the court’s Article 3 jurisdiction. Prescribed for 23 years to 5.6 million patients, Mifepriistone proved its safety and efficacy, warranting no action by the North Texas-based District court. Ruling 7-2 to stop the Kacsmaryk’s ban, the Supreme Court spoke decisively.
Constitutional issues at stake are rather obvious with the District Court second-guessing the science-based FDA. Kacsmaryk has no facts to support his ban other than biased opinions by pro-choice lobbying groups like Alliance for Defending Freedom, one of the anti-abortion groups backing Judge Kacsmaryk’s ban on Mifepristone. “If allowed to take effect, the lower court’s orders would thwart FDA’s scientific judgment and undermine widespread reliance in a healthcare system that assumes the availability of mifepristone as an alternative to more burdensome and invasive surgical procedures,” said White House Solicitor General Elizabeth Prelogar told the Supreme Court. Prelogar didn’t tell the Supreme Court that Kacsmaryk ruling violated the Constitutions Separation of Powers clause. Prelogar. Usurping FDA approval, the North Texas District Court violated he Constitution’s Article 3 authority.
Alliance Defending Freedom argued that the Solicitor General’s argument that the “sky is falling” amounted to a smoke screen. “If this litigation involved any other drug, there would not even be a debate as to whether the Court should intervene mid-litigation stream with extraordinary relief,” said the Alliance Defending Freedom. After the Supreme Court ruled June 21, 2023 that Roe v. Wade was no longer settled law, it threw a monkey wrench into the nation’s abortion laws. Six Supreme Court Justice ruled to end Roe v. Wade, approving Dobbs v. Jackson that the Constitution offered no protections for abortion. But the six justices go Roe v. Wade wrong, that only said the federal courts cannot stop a woman for deciding her own health care decisions, whether or not that meant getting an abortion. Since ending Roe v. Wade, 13 states have banned or greatly restricted abortions in the U.S.
When arguments resume May 17 in the 5th Circuit Court in New Orleans, the appeals court should ask the question whether the North Texas Court has the authority as a judicial branch to question the FDA’s Aricle 2 authority. If the appeals court rules, not on the merits of moral arguments but on the question of whether the District Court can usurp the authority of FDA, the case will be closed quickly on whether the federal courts can mess with the Executive Branch. Judging by the April 21 7-2 ruling, the Supreme Court tells the Circuit Court to resolve the issue. Danco, the maker of Mifremex, and the generic Mfepristone maker GenBioPro, agreed with the Supreme Court ruling, that courts have no business second-guessing the FDA. More likely than not, the 5th Circuit will rule the same as the Supreme Court that the North Texas District Court overstepped its boundaries.
Doctors for Hippocratic Medicine argued that Mifepristone’s fast-track approval in 2000 short circuited actual drug dangers. Prescribed over 5.6 millions times, accounting for at least 50% of all U.S. abortions, is plenty of track record to show Mifepristone’s safety and efficacy. When Biden’s Solicitor General goes to the 5tth Circuit Court May 17, they should argue that the judicial branch has no authority to usurp as scientific Executive Branch agency like the FDA. Show adverse effects doesn’t mean the benefits of Mifepristone out weigh any costs from adverse side effects. White House officials hoped the conservative Supreme Court would have agreed with Kacsmaryk’s District Court, upholding the ban. Democrats want to use ending Roe v. Wade and the Mifeprisitone ban to rallying criy against Republcians in 2024. Conservatives and liberals joined the Court’s majority ruling.
Polls show that most rank-and-file Republicans don’t support a ban on Mifepristone or other surgical abortions procedures. Democrats and the press unfairly target Republicans for backing the anti-abortion movement. Sizable majority of Republicans oppose more restrictions on abortion, regardless of pro-life activists that happen to be Republicans. When the White House goes back to court in New Orleans, Solicitor General Prelogar needs to remind the justices that the Judicial Branch cannot usurp the FDA, an agency of the Executive Branch. Whatever the merits of Mifepristone, that’s for the FDA’s scientific researchers to determine, not lobbying groups with extreme prejudice against abortions. Biden hopes to use the Supreme Court ending Roe v. Wade to remind voters of extreme GOP practices. Republicans need to push back as a party.
About the Author
John M. Curtis writes politically neutral commentary analyzing spin in national and global news. He’s editor of OnlineColumnist.com and author of Dodging The Bullet and Operation Charisma.
