The problem of men in black robes
The U.S. Food and Drug Administration gave the green light to the prescription drug mifepristone in 2000. Last week, 23 years and five presidential administrators later, a federal judge in Texas placed a preliminary hold on the use of mifepristone, one drug in a two-drug combination used to terminate early pregnancies.
Only one-half of all abortions performed in the United States are surgical in nature. Fifty percent or so are induced chemically.
The ruling by U.S. District Court Judge Matthew Kacsmaryk, sitting in Amarillo, was premised on the notion that the FDA had failed its mandate to make a scientific study of the drug rigorous enough to uncover the harm it does to its patients, all women.
Horse feathers.
The not-so-veiled reason for the ruling was to put an end to abortions in the United States, even in states where early end-of-pregnancy procedures are perfectly legal.
Kacsmaryk, who donned his first black robe in 2019, has a long record as an anti-abortion warrior. His background includes a stint as lead attorney for First Liberty Institute, a conservative legal group with strong anti-abortion credentials.
In his written opinion, Kacsmaryk signaled his anti-abortion bona fides by employing the sort of terminology heard at Knights of Columbus fish fries: “unborn person,” “unborn human,” “unborn child,” “the aborted human.”
About the only two familiar anti-abortion phrases he didn’t use were “murder” and “murderer.”
Kacsmaryk’s sister told the Washington Post, “He’s very passionate about the fact that you can’t preach pro-life and do nothing… You have to do something. You can’t not.”
She added, “I feel he’s made for this. He’s exactly where he needs to be.”
For good measure, there’s this from his college years. In a letter to a newspaper, the future jurist wrote, “The Democratic Party’s ability to condone the federally sanctioned eradication of innocent human life is indicative of the violence undergirding this party.”
Democrats, he went on, have “facilitated the demise of America’s Christian Heritage” in addition to assaulting “the traditional family.”
It’s perfectly clear how and why he reached the decision he did in the matter of mifepristone. The judge is a true believer. Something of a fanatic.
He’s not a jurist, at least not the traditional kind he swore he would be when he appeared before senators prior to his narrow confirmation vote.
“As a judicial nominee, I don’t serve as a legislator,” Kacsmaryk told the Senate Judiciary Committee. “I don’t serve as an advocate for counsel. I follow the law as it is written, not as I would have written it.”
Of course, opposition to abortion is OK, if that’s what you’re into. (His youthful ideas about the Democratic Party are pretty crazy, though they’re notions shared by a great many Republicans.) And it’s fine for private citizen Kacsmaryk to believe as he believes. But as a judge, he must resist the temptation to decide matters through a personal lens.
Easier said than done. Impossible maybe. But that’s the deal. Or it should be. Otherwise, the whole enterprise devolves into judicial tyranny, which is exactly what went down in this case and what is going on in far too many instances across the board, starting with the conservative super-majority on the Supreme Court.
“Ideologues in robes” (the turn-of-phrase belongs to the Post’s Ruth Marcus) is a real problem.
Appointed to lifetime terms, federal judges ought to watch themselves. As the late Chief Justice Harlan Stone said, “The only check on our exercise of power is our sense of self-restraint.”
That, and in the case of lower court judges like Kacsmaryk, higher courts. It’s when higher courts (and the highest court of all) are infected with the same bug that things can get really sticky.
In the wake of Kacsmaryk’s mifepristone decision, leaders of the pharmaceutical industry warned against undermining FDA’s scientific expertise and drug approval process.
Some 400 drug industry executives and investors signed an open letter stating that “if the courts can overturn drug approvals without regard to science or evidence … any medication is at risk for the same outcome as mifepristone.”
The Department of Justice noted, “If allowed to take effect, the court’s order would thwart the FDA’s scientific judgment.”
Richard Robbins lives in Uniontown. He can be reached at dick.l.robbins@gmail.com.