While you were sleeping

By Washington Correspondent Nellie Bly
with Legal Correspondent Saori Shiroseki

Last week we reported on the Good Friday murder of the legal rights of 150 million American women by a bent whackjob judge in America's jurisprudential center, Amarillo, Texas. 

Although we are not known for our optimism, we ventured to predict that “this gruesome opinion is in our view unlikely to survive the tender mercies of even the bent Fifth Circuit.”  It turns out we were only sort of right.

The Fifth Circuit in action

The Republican-bent Fifth Circuit, unable to stomach the indefensible outcome of Amarillo Matt's “opinion,”  decided he couldn't reverse a 23-year-old decision approving mifepristone.  But to the surprise of no one, they appeared to endorse large chunks of the insane reasoning of his opinion.

As to standing, which requires plaintiffs to have a distinct and palpable injury (rather than just a sad about being on the losing side of a political or policy battle), the Fifth Circuit first reversed the burden of proof by requiring the defendants to prove that plaintiffs didn't have an injury, rather than requiring that plaintiffs allege a plausible and real injury.

Having turned standing on its head, the Fifth Circuit found merit in plaintiffs' preposterous claims that they were injured by the approval of mifepristone because some day they (supposedly doctors) might have to treat someone for complications of mifepristone, among all the other business that comes into an emergency room.  Since the incidence of such complications is proven to be extraordinarily low, the claim is inherently ridiculous.

Nonetheless, the Fifth Circuit found that these forced-birth doctors would face supposedly “enormous stress and pressure” by treating women who had taken the drug.  Whether the stress and pressure was enormouser than the usual stress of dealing with emergencies in, wait for it, the emergency room caused by anything else, like school kids whose bodies have been shredded by high powered weapons of war following an exercise of Second Amendment rights, is unknown.  

In any event, as we pointed out as long ago as last week, the complication rate from pregnancy is far higher than from mifepristone.  So use of the drug can be expected to decrease stress and pressure in the ER, and banning it will increase ER visits and the stress and pressure attendant thereto.

But the stupidity and mendacity of the Fifth Circuit didn't end there.  As a second injury, they cited the possibility that forced-birth doctors might have to treat mifepristone patients with procedures that could constitute an abortion in supposed violation of their constitutional right to deny health care to critically ill patients at whim.

That injury too is irrelevant at best.  Outlawing safe and legal abortion will lead to botched illegal abortions.  The treatments for those abortions could be the same as the ones these doctors are too full of the Holy Spirit to treat.  So granting them the relief they seek (outlawing mifepristone) won't address their supposed injury (doing their jobs).

On the supposed merits of the forced-birthers' claim, the Fifth Circuit said that their challenge to the 2016 loosening of FDA restrictions on the use and dispensing of mifepristone might well succeed. Again, they illegally flipped the burden of proof to require the FDA to prove its approval process was flawless, rather than demanding that plaintiffs prove it was arbitrary and capricious.

This was probably because the plaintiffs submitted no competent science-based evidence tending to establish that the 2016 and 2020 amendments were not well founded in science and law.  That is because there is no such evidence, either before those amendments or in the years since the conditions were changed.  

Finally, in considering the balance of equities and interests in letting the Amarillo injunction ruin the lives of women, the Court placed weight on the truly bats*** crazy argument that the 1873 Comstock Act prohibition on mailing abortion drugs had any, repeat any, relevance to the question of whether the FDA acting under its separate statutory authority properly approved mifepristone in 2000 or modified its approval in recent years or whether the FDA's science-based approval process should be set aside indefinitely.

As a final grab at the pussies of 150 million American women, the Court placed zero weight on the interests, needs, hopes, fears, and rights of those women to safe, legal medication abortion.  

"Your interests don't matter on appeal of a stay, dear."

Perhaps you are now wondering as to who appointed these clowns to the once-distinguished Fifth Circuit bench.  If you had zero Democrats on the panel (two appointed by the Tangerine-Faced Defendant and one by George W. Bush), you won!  Your bet, that is, not your legal rights.

The Department of Justice, properly appalled by this travesty of judicial review, kicked it to the Supreme Court, six of whose members took away the rights of all Americans to an abortion just last year.  What happens next is anyone's guess.

We suspect that Sulky Sam Alito and his, um, confederates are looking for some way to send the case back to Amarillo for more endless factfinding without making any ruling on the law, which if followed would require the whole mess to be rubbished, but frankly no outcome is out of the question, including a holding that the FDA itself is unconstitutional.

What's the moral of the story?  You probably have guessed it by now: none of this would have happened had not 55% of white women voted for the Tangerine-Faced Grifter in 2016, who larded the bench with eighth-rate extremists to entice forced-birth evangelicals to vote for a depraved sex offender.

It's not like we weren't warned:

Mrs. Clinton, the presumptive Democratic nominee, seized on the court’s ruling to warn that Mr. Trump, her presumptive Republican opponent, poses a threat to women. She recalled his suggestion this year that abortion be banned and that women who violate that ban be penalized. She also said that with other states also seeking to restrict access to abortions and with Republicans seeking to defund Planned Parenthood, proponents of abortions rights could not afford to let up. 

“We’ve seen a concerted, persistent attack on women’s health and rights at the federal level,” Mrs. Clinton said in a statement. “Meanwhile, Donald Trump has said women should be punished for having abortions.” 

That was on June 27, 2016.  What were supposed advocates for women's rights saying after Hillary sounded the alarm?

A few weeks later, noted feminist Maureen Dowd laser-focused on the real issue facing women in the election, which is what Hillary had said about Monica Lewinsky 20 years earlier:

After the Monica affair, she deflected questions about Bill’s cheesy behavior by summoning up the specter of the Vast Right-Wing Conspiracy. Now she deflects questions about the emails and foundation ethical tangles by summoning up the specter of the Vast Alt-Right Conspiracy. 

I'm sure that the women who may be forced into unsafe abortions or forced birth if Trump's bent courts outlaw mifepristone will be much comforted to recall how Hillary stood by her horndog husband when Maureen said she shouldn't, because that was the real issue facing women in 2016.

Even supposedly more progressive minds didn't appreciate the stakes of that election.  Here's a report from The Guardian on August 2, 2016:

By the way, if all of the idiots who had voted for Jill Stein had instead voted for Hillary Clinton, American women would not today be living in fear that their right to a safe medication abortion would be stripped from them.

And with the catastrophe imminent our brilliant pundits (in this case Kathleen Parker) still didn't hear the sounds of Zeroes coming in low over Diamond Head:

So she told her many devoted readers in The Washington Post on November 4, 2016.

When Trump filled the Supreme Court seat stolen from Merrick Garland with some pompous reactionary, here's what Kathleen had to say:

Watching the Senate confirmation hearings of Supreme Court nominee Neil Gorsuch, one might easily find oneself wishing Gorsuch were president of the United States.

Alas, he's not. But Gorsuch's selection to replace Antonin Scalia is the sanest act committed by a president whose first 60 days have left him with an approval rating under 40 percent and persistent questions about his stability.

For those of you who haven't been paying close attention since then, Gorsuch was one of the six bent Republican Justices who stripped American women of their rights over their own bodies just last year.

The point is not just to drag pompous bloviators like Kevin's sister and Parker.  The point is when it comes to American democracy at this moment, don't calm down.  We won't be fine no matter who wins.  If a Democratic candidate did something you didn't like, e.g. refusing to divorce her tomcatting husband, think very carefully about the alternative.

We're sorry if your feelings are hurt.  We're sorry if you have to get off your ass and vote in each and every boring, stupid election, even the ones for the Tennessee legislature.

But we'd be even sorrier if next week we learn that thanks to our Republican-bent courts, women who thought they could obtain a safe legal medication abortion start looking at their coat-hangers with a new and desperate eye.