Legal News: 150 million women lynched in Texas

By Legal Editor Scott V. Sandford and
Legal Correspondent Saori Shiroseki reporting from America's Legal Capitol

AMARILLO, Tex. – The desolate windswept prairie of Amarillo, Texas seems like an unlikely forum for limiting the rights of 150 million or so American women who might become pregnant someday, but in Republican America, no forum is too obscure to take away rights or enforce minority Republican rule.  In other words, Tobago rules the world! [No one will ever get that conflicts joke so stop it – Ed.]

On the night of Good Friday, when he thought no one notice his order to crucify American women, bent Trump-appointed “judge” Anthony Comstock [Surely, Matthew Kacsmaryk? – Ed.] issued an order purporting to ban the dispensing of or prescribing one of the two drugs used for a medication abortion, a safe procedure used by women millions of times a year to exercise their right to terminate an unwanted pregnancy.

The courthouse in Amarillo rules the world!

It came as a surprise to no one that this judge in this court would issue a decision free from any taint of lawfulness.  But it's worth examining the outrage closely first so that its fatal defects can be brought into the light and second to place in the context of a country whose democracy is crumbling under the unrelenting nationwide onslaught of white extremists (Hello, Tennessee!).

Let's start by examining the judge. Certainly any federal judge would approach an abortion-related legal question with an open mind, right, Washington Post?

A few months into his freshman year, he wrote a letter to the editor of the student newspaper about abortion.

“The Democratic Party’s ability to condone the federally sanctioned eradication of innocent human life is indicative of the moral ambivalence undergirding this party,” Kacsmaryk wrote, endorsing a Republican Party platform that would grant a fetus the full legal protections of a person.

Democrats, he added, had “facilitated the demise of America’s Christian heritage” and mounted a “contemptuous assault on the traditional family.”

Faith was the “driving force and line” for Kacsmaryk growing up, said [his sister] Griffith. Raised by two born-again Christians in the suburbs of Fort Worth, Kacsmaryk and his two sisters .... all learned early that abortion was wrong.

“It was known, kind of like my faith,” Griffith said.

No wonder even spineless Susan Collins couldn't vote for this zealot (after being assured by Mitch McConnell that he had the votes without her).

How did this case with nationwide reach even get to the prairie wasteland of Amarillo rather than any one of the other 384 federal courthouses in this land of the free?  Funny story:

The lead plaintiff in the abortion pills case, the Alliance for Hippocratic Medicine, incorporated in Texas — with a “registered agent” in Amarillo — several months before the lawsuit was filed. While the group’s website does not include any location or contact information, records filed with the Texas secretary of state’s office show that the group’s mailing address is in Tennessee. 

Judge Kacsmaryk pulls the plug on women's right to choose

What a coincidence!

Now the fun stuff: Amarillo is located in the Northern District of Texas.  Right now there are 16 judges in that District.  What are the chances of the biggest abortion case in the land ending up in the lap of a forced-birth zealot?

How do they assign cases in the Northern District of Texas?  The answer is clear and precise, as set forth in ND Tex. Local Rule 83.3:

The district judges shall determine the method by which all cases are assigned to individual judges.

So just because a case is filed in the wilds of Amarillo doesn't mean that it has to be decided by the sole judge sitting in that tank town.  In fact you would think that a group of judges concerned about the potential for abusive “judge shopping” would ensure random assignment across the whole district.

If you thought that, all we can say is sister, welcome to Texas!  As our old friend University of Texas Law School Professor Steve Vladeck tells us, the rule that all cases filed in Amarillo are heard by one bent judge is not the law of the land, it's the whim of the 16 judges in the Northern District.  

We think that matters of fundamental importance to the entire nation, including at least 150 million women who might someday decide to terminate a pregnancy, should not be decided by 16 lazy black-robed hacks in Texas, but what do we know?

Moving on from the procedural to the substantive travesty of justice, let's just have a look at this hack's opinion.  Its fatal defect is found deep in its bowels.  Actually, we're just s***in' you.  It's on page 1.

The opinion starts with a whine about how the FDA supposedly delayed acting on the petitions of the forced-birth pressure groups who wanted it to rescind its 2000 approval of mifepristone, part of the two drug medication abortion regimen.  From the opinion itself, it is clear that the FDA eventually responded to the petitions, but not in the way that Judge Holy Roller liked.

The legal point buried under all this is that a federal judge has an unquestioned power under the Administrative Procedure Act [Stop snoring back there – Ed.] to order an agency to make a decision about something.  Once the agency does so (here, following the mountains of evidence proving that the drug is safe and effective), the judge can review its decision and if the judge finds it wanting (after according proper deference to agency fact-finding) it can order the agency to address whatever defects were supposedly found.

What a judge can't do, ever, is make its own factual findings in the place of the FDA's and then reverse the FDA's decision to approve the drug on the basis of the supposed facts it found.

And even if it could do that, it could never order the agency to take a specific enforcement action (like going after makers, sellers, or users of the drug) because the decision of what enforcement action to take if any is for the agency to decide as a matter of discretion, not as a matter for a Christian dominionist ruling from his throne of tumbleweeds. 

There are insane errors of law on every page.  We have time for only a few.

As suggested earlier, the entire lawsuit was concocted by a forced-birth pressure group.  It turns out that just because you are sad about a law you don't like, you don't actually have a claim to state in federal court.  You must have suffered a real injury, or in lawspeak, “standing.” This is an important constitutional limitation on the power of courts designed to prevent them from invalidating every law or ruling they don't like.  Like here.

Like his idol Jesus Christ turning water into wine, this whackjob miraculously turned whine into injury:

Here, the associations members have standing because they allege adverse events from chemical abortion drugs can overwhelm the medical system and place enormous pressure and stress on doctors during emergencies and complications.

(He likes to call the procedure “chemical” abortion because that makes it sound as if women are being offered Drano. Last we looked, every drug is by definition a chemical.)

But let's unpack the argument.  He says that these supposed doctors have suffered an injury because the use of mifepristone causes women to flood emergency rooms.  Aside from the falsity of the claim (mifepristone abortions are incredibly safe and complications rare, rarer than pregnancy:

 

), if mifepristone were outlawed, pregnant women would use another abortion pill, obtain surgical abortions, carry an unwanted pregnancy, or, in desperation, sicken and die from unsafe illegal abortions.

Each of these outcomes would raise the supposed pressure on the medical system.  So if the plaintiffs win their case, their purported injuries would only get worse.  That's not standing.  That's not a case.  That's Christian dominionism with a docket number.

When he finished butchering the law of standing, the “judge” turned to the merits, including a holding that the Comstock Act could be used to attack the FDA"s decision because it supposedly banned the mailing of mifepristone.

Anthony Comstock: He's tanned, rested, and ready!

Comstock?  Who he?  Until last year, Anthony Comstock was thought to be a somewhat comic figure from the distant past who fought a number of battles to harass and oppress women, and to be fair, the rest of us, by raging to outlaw birth control, free speech, art, and any number of other things he thought were obscene.

He's back, baby! As Michelle Goldberg explains:

Anthony Comstock, the mutton-chopped anti-vice crusader for whom the Comstock Act is named, is back from the dead.

Comstock died in 1915, and the Comstock Act, the notorious anti-obscenity law used to indict the Planned Parenthood founder Margaret Sanger, ban books by D.H. Lawrence and arrest people by the thousands, turned 150 last month. Had this anniversary fallen five or 10 years ago, it barely would have been worth noting, except perhaps to marvel at how far we’d come from an era when a fanatical censor like Comstock wielded national political power. ...Until very recently, it seemed a relic. 

By its terms, the Comstock Act, which predates the law establishing the FDA by over 35 years, prohibits mailing drugs intended to cause an abortion.  Whether it survived the comprehensive drug regulation system established by the Pure Food and Drug Act in 1906 is dubious, but its irrelevance to the case at hand is indisputable.

Nothing in the Comstock Act purports, or could be read, to limit the ability of the FDA to determine the safety of a drug, including a drug that may be used for abortion.  Assuming arguendo and it's a mighty big arguendo, that the Comstock Act remains in force, nothing prohibits anyone from sending FDA-approved drugs by private courier (or carrying them in the back of their car) anywhere.

We could go on and on, but this gruesome opinion is in our view unlikely to survive the tender mercies of even the bent Fifth Circuit.

But the legal news is not all good.  Even if the decision of this High Plains Tosser is rubbished on appeal, there are other legal threats on the horizon.  There is a non-frivolous argument that state bans on abortion medication are not pre-empted by FDA approval.  There is even an argument that states like Texas can prosecute criminally good people in Massachusetts who cause abortion pills to be sent to Texas, or even let it be known that they would provide medication to Texans who travel to Boston.

It all comes back to the voters (including 55% of white women) who elected the Tangerine-Faced Defendant and a motley crew of spineless extremist Senators who installed three, count 'em, three forced-birthers on the Supreme Court in just four years.  

Until the voters reverse their colossal bad judgment and elect a government that unpacks the bent Supreme Court (not to mention the law west of the Hudson), American women will live in a world aptly described by Elie Mystal: