Judge in Abortion Pill Case Set Hearing but Sought to Delay Telling the Public
According to sources familiar with the matter, the federal judge has set the first hearing in a case that seeks to challenge the federal approval of an abortion pill widely used for this week. However, he intended to delay the public’s awareness of the matter, according to those who are familiar.
Judge Matthew J. Kacsmaryk of the Northern District in Texas told lawyers on Friday that he had scheduled the hearing for Wednesday morning. He asked them to not disclose the information and stated that he would not make it public until Tuesday evening.
A person familiar with the case said that such steps were “very irregular” especially in a case of intense public concern.
Kacsmaryk is a Trump appointee, who has written criticalally about Roe V. Wade and had previously worked for a Christian conservative law organization. He told lawyers Friday in a conference phone that he didn’t want the March 15 hearing “disrupted” and that he wanted all the parties to discuss their points in an orderly manner, according to people who were familiar with the discussion.
Judge also stated that security concerns had been faced by court staff, including threats of death, and that the measure was meant to protect court proceedings.
A coalition of doctors and anti-abortion groups filed a lawsuit against the Food and Drug Administration in November. The suit seeks to end over 20 years of legal abortion medication use. The Alliance for Hippocratic Medicine is the plaintiffs. It lists five anti-abortion organizations as its members. They have requested a preliminary injunction from the judge ordering that the FDA withdraw its long-standing approval for mifepristone (the first in the two-drug abortion regimen).
The hearing will see arguments made for and against injunctions by lawyers representing the plaintiffs, FDA, and a manufacturer mifepristone. It is not clear if the judge will issue an injunction that day or later.
Legal experts believe such an order would be unheard of and, if higher courts allowed an injunction, would make it more difficult for patients to obtain abortions in states that allow abortion, and not just those trying to limit it.
More than half of all abortions in America are performed by medication abortion. This proportion has increased as conservative states have imposed abortion bans and sweeping restrictions following the Supreme Court’s decision last June to repeal the national right to abort.
The Washington Post reported earlier on Friday’s call and the upcoming hearing.
The judge asked the lawyers not to speak out about the hearing. He did not issue a gag or bar participants from sharing information. He asked them to keep the information confidential “as acourtesy.”
According to those familiar with the discussions, he claimed that the court would offer seating for the press and the public, but the fact that he did not give advance notice seems to have the practical effect to reduce the number of people who will attend. Amarillo is located in the Texas Panhandle and is a few hours away from major Texas cities. Only a handful of these cities offer direct flights.
The public court record revealed subtle signs on Friday that something was amiss. The first entry to the case’s record in 10 days was made that morning: a notice for appearance by a Justice Department lawyer. This is a standard document typically added to cases in advance of a proceeding. However, the docket didn’t show any proceeding.
A gap was also found in the numerical list of documents in the docket. Document 124 was missing, suggesting that an entry from a recent date had been sealed. According to people familiar with the matter, the sealed document refers to Friday’s meeting between the judge & the lawyers.
Participants shared Kacsmaryk’s request with their teammates after the meeting. They noted that it was unusual for the status conference to be held under seal to prevent the public from learning about it. Closed hearings are generally not allowed by the federal government unless they are essential to national security.
Plaintiffs claim that FDA failed to properly review scientific evidence and did not follow appropriate protocols when it approved Mifepristone in 2000. They also claim that FDA has ignored the safety risks associated with the medication since then. Alliance for Hippocratic Medicine was the lead plaintiff. It was formed in August in Amarillo shortly after Roe v. Wade was overturned by the Supreme Court. Kacsmaryk, the federal judge for the Amarillo section of the court’s Northern District, is the only one.
Both the FDA and Department of Justice strongly denied the claims in the lawsuit. They stated that the FDA’s thorough reviews of mifepristone throughout the years had repeatedly confirmed its decision to approve the drug. Mifepristone blocks a hormone that causes a pregnancy to form. The FDA stated in a court filing that it would be “significant harm” to overturn its approval of Mifepristone, claiming that patients would lose a safe, effective drug that has been available for more than 20 years.
The federal government will immediately appeal a judge’s preliminary order that bars access to mifepristone while the trial progresses. Experts in legal law said that even if a preliminary injunction is not lifted, there are several legal options that could allow the makers of mifepristone and the providers to continue prescribing the drug to patients.
Some abortion providers will only be able to offer misoprostol if legal access to mifepristone is restricted. This medication can be used in many countries and is safe on its own. Misoprostol is approved for medical purposes. It causes contractions that are similar to miscarriages and is slightly less effective when used alone than when combined with mifepristone. Side effects like nausea can also be caused by misoprostol.
The plaintiffs are also seeking to ban misoprostol’s use for abortion in the lawsuit. However, their request for a preliminary order was focused on mifepristone.
Patients would likely be able to order mifepristone or misoprostol via telemedicine abortion services located in other countries.
However, such a ruling could cause confusion and difficulties for both patients and providers across the country. Experts in legal affairs stated that this would be the first court to order that a drug is taken off the market. If such a ruling stands, it could have implications for federal regulation of other drugs.