Column: A national abortion ban does not apply. But a hand-picked Trump judge could do something almost as extreme

Trust in the Supreme Court has plummeted since the conservative trial of the Trump years. Survey show. But take a closer look: The staff and goings-on in some lower federal courts shouldn’t inspire confidence either. And the ramifications of the judges’ decisions in these dozens of courtrooms can be as far-reaching as those of the Supremes.

Case in point: The federal court in Amarillo, Texas, where at a hearing Wednesday The sole judge for a sprawling, remote county was considering whether to ban – statewide – an abortion pill used in more than half of all aborted pregnancies in the country, including miscarriages. US District Judge Matthew Kacsmaryk is expected to issue an injunction as early as this week, effectively banning the pill even in states where abortion is legal, while the lawsuit calls into question the drug’s safety.

Whatever you think about abortion, you should be appalled by this lawsuit. It has been more than 20 years and countless dosages since the Food and Drug Administration tested and approved mifepristone as part of a two-drug abortion regimen. Since then, the agency has repeatedly re-approved it, and mountains of medical data have confirmed its safety.

opinion columnist

Jackie Calmes

Jackie Calmes takes a critical look at the national political scene. She has decades of experience reporting on the White House and Congress.

At Kacsmaryk’s hearing, the anti-abortion activists who brought the case conceded that it would be unprecedented for a court to order the government to withdraw a long-approved drug from the market.

And yet… the anti-abortion groups who question FDA scientists have reason to be optimistic that Kacsmaryk will side with them. After all, they handpicked this judge to hear their lawsuit, just as other conservative activists did during his four years on the bench, because of his apparent sympathy for their causes.

For right-wing “forum buyers” is Kacsmaryk one of the go-to guys.

Like so many others chosen for the Bundesbank by former President Trump, he is white, male, young – only 39 years old when he was nominated for the lifetime job to better govern for decades – and reliable, radical, conservative. He joined the Federalist Society in law school, worked on Republican campaigns in Texas for Senator Ted Cruz, among others, and came to the Federal Bank straight from an attorney for a Christian “religious freedom” rights group. First Liberty Institute.

As his staunch anti-abortion sister recently told The Washington Post on her big brother’s role in the abortion pill case: “I feel like he was made for it. He’s exactly where he needs to be.”

Trump certainly thought so. Egged on by evangelical supporters, the Federalist Society and the equally right-wing Heritage Foundation, former President Kacsmaryk had to be nominated three times in three years before a narrow vote confirmed him in a Republican-controlled Senate. Kacsmaryk’s views proved almost too much even for some Republicans.

His confirmation hearings demonstrated not only his anti-abortion advocacy but also his views LGBTQ people hold mental disorders and that legalized same-sex marriage would take the nation β€œin one fell swoop Path to potential tyranny.” He had written that “the pro-marriage movement” β€” which advocates marriage between a man and a woman β€” must follow the lead of Roe vs. Wade opponents: play a long game and fight to “win the case in 40 years‘ to restore ‘traditional marriage’.

No wonder Kacsmaryk is reportedly keeping one bobblehead by Clarence Thomas on his desk. Judge Thomas agreed with the Dobbs vs. Jackson Women’s Health Organization’s decision to overthrow Roe last June, suggested that the Supreme Court also “reconsider” constitutional protections for same-sex marriage, same-sex intimacy and contraception.

Kacsmaryk has twice reigns against President Biden’s attempt to end Trump’s “stay in Mexico” policy on asylum seekers. He also decided against a federal program that makes contraceptives available to teenagers, say that it violates the rights of parents. And he dejected a Biden policy requiring healthcare providers not to discriminate against LGTBQ people, despite the Supreme Court finding that an anti-discrimination law covers these groups. Kacsmaryk began his dissenting opinion by citing Judge Samuel A. Alito Jr.’s objection to that decision.

But the abortion pill case has sparked the most controversy. Rightly so: it underscores just how radical the nation has been in cracking down on women’s reproductive rights after half a century of Roe’s constitutional protections.

With the Dobbs decision, the Supreme Court threw abortion law back on the states, “on the elected officials of the people,” Alito wrote. Judge Brett M. Kavanaugh agreed, stating that judges would no longer decide “these difficult moral and political issues.”

The was what conservatives had for decades called their holy grail: let the states decide. In fact, red states have rushed to impose near-total bans. According to the Guttmacher Institute, which is responsible for abortion rightsthat pursues US abortion laws, 24 states have enacted or are likely to enact such bans (some are challenged in court).

But now abortion opponents want more – a national ban. With no hope of getting such legislation from a Democratic president and a divided Congress, they have once again turned to the federal courts for the next best thing: a ruling with national clout banning medical abortions. So much for Alito and Kavanaugh’s predictions.

Reports from Wednesday’s hearing indicated that Kacsmaryk was, as usual, looking for a way to support anti-abortion activists. If he does conclude that the FDA and medical community have been wrong about mifespristone for nearly 23 years, it’s a good bet he’ll be confirmed ultra-conservative 5th Circuit Court of Appeals whose jurisdiction includes Texas. Then the matter goes to the Supreme Court. We know which way it’s headed.

And judges wonder why they have a record 58% disapproval rate, why so many Americans see the judiciary as ideological rather than impartial and no less political than the other two branches of government.

Quite simply: the judiciary often is nowadays.


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