Sunday's postcard, the path to Amarillo, and the courts' collapsing credibility on abortion

April 16, 2013

Although I didn’t have a voice in the matter, I’m grateful I was raised Catholic.

If I hadn’t been raised Catholic I wouldn’t be able to write this piece with the leverage of experience it requires. I wouldn’t be so intimately grounded in the contradictions of a powerful church that is as capable of grace as it is capable of the arrogance that undermines its moral authority.

A hard part about composing this is the respect and compassion I have for some very fine practicing Catholics, people I deeply admire and appreciate. I don’t enjoy writing this. In all likelihood, they won’t enjoy reading it.

Let me cut to the chase.

Democracy has a problem when people of faith— people entitled to secure their religious freedom—step out from the shadows of their chapels to demand that the rest of us conform to their beliefs. It becomes an even bigger problem when they succeed; succeed at the expense of dramatically affecting our lives by stomping on our beliefs, our freedom, and our well-being.

Enter a jurist whose main qualification for the bench, notably, is his religious zealotry. This would be Federal District Court Judge Matthew Kacsmaryk. Those of us who follow such things got to know of Judge Kacsmaryk a few weeks back as it became clear that one of the most divisive controversies of our time was headed his way.

Judge Kacsmaryk is an important cog in a scheme within a scheme. The larger scheme—a decades-long plan of conservative Catholics and Protestant fundamentalists—was to repeal Roe v. Wade, the 1973 Supreme Court decision that legalized abortion. The repeal of Roe happened in June of last year, when the court decided Dobbs v. Jackson Women’s Health Organization.

The Dobbs decision revoked a national right to abortion during the first trimester of pregnancy, and allocated the regulation of abortion to the fifty states. (Fourteen states, including Idaho, have now banned abortion and a fifteenth state, Florida, may soon join the list, pending a federal court review.)

While Dobbs was celebrated by the religious right, the movement’s leadership never intended to stop at a ruling (Dodd) that would leave it for individual states to decide for their citizens. Their goal is a national ban.

Judge Kacsmaryk is living proof of this. A fundamentalist Christian and member of the ultra-conservative Federalist Society, he occupies the federal bench in Amarillo, Texas, where plaintiffs can go to file federal lawsuits comfortable in the knowledge that Judge Kacsmaryk will be the judge assigned to the petition. He is a Trump appointee, best known for his religious-based advocacy and openly expressed hostility to abortion.

Judge Kacsmaryk was narrowly confirmed by the Senate in June of 2019, although one Republican Senator, Maine’s Susan Collins, voted against him citing his “alarming” prejudice against LGBTQ Americans and for characterizing proponents of legalized abortion as 'sexual revolutionaries.’ “Such extreme statements reflect poorly on Mr. Kacsmaryk's temperament” Sen. Collins wrote, at the time, “and suggest an inability to respect precedent and to apply the law fairly and impartially.”

On April 7th, Judge Kacsmaryk rendered one of the most controversial federal rulings of this century. He granted a preliminary injunction at the request of an entity named the Alliance for Hippocratic Medicine and four physicians aligned with the Alliance. The injunction suspended the U.S. Food & Drug Administration’s approval of mifepristone, a widely accessible drug that is used primarily to induce abortion, but also in the treatment of miscarriages. Mifepristone is used in more than half of the abortions in the U.S.

Mifepristone blocks the hormone progesterone, thus causing an embryo to detach from the uterus. The FDA first approved the distribution of mifepristone 23 years ago and, in 2016, reported that the drug’s “efficacy and safety have become well-established by both research and experience, and serious complications have proven to be extremely rare.” Mifepristone is considered safer than surgical abortions and commonly used drugs like penicillin and Viagra.

Hold that thought.

It is not my purpose to get deep in the weeds about each maddening aspect of Judge Kacsmaryk’s injunction. To do so would contribute to a kudzu of details that tend to obscure the real story of what is going on here—the gaming of the judicial system to disenfranchise women who, for personal and/or medical reasons, would choose to abort their pregnancies.

So let’s just look at step 1, the opening layer of the craziness, the issue of standing. In short, the issue of standing is the gateway to enter the courts. You have to show you have a right to initiate or participate in a legal action. You would think if there were a genuine issue of safety with mifepristone that the people allegedly injured by the drug would be the ones to bring the case. Their injuries would give them standing.

That’s not what happened here though.

The party(s) that brought the case are Christian-oriented anti-abortion groups. They oppose mifepristone not because it’s dangerous to women, but because it’s a highly safe and relatively private way to have an abortion. Their unabashed cause in bringing the action is to stop the abortions, not to rescue women from a nonexistent wave of medical complications. None of the plaintiffs is arguing they’re experiencing actual, physical harm due to the FDA’s approval of mifepristone.

Their argument for standing is that, as physicians, they would be pressed to render medical assistance to women who have the rare complications after taking the drug. As the Justice Department points out in a brief filed in January, none of the physicians bringing the action are regulated by the FDA, nor purport to prescribe mifepristone.

“Rather, they contend that they will be injured—in a highly roundabout fashion—because other physicians will prescribe mifepristone to patients who will experience adverse events; those patients will seek care from a complaining physician; and the complaining physician will divert time and resources from other patients, subjecting them to ‘potential liability’ exposure and insurance costs, and potentially causing them to suffer grief, distress, and guilt.”

It doesn’t take a lawyer to see the problem with this sort of reasoning. I think even the Pope would scoff if he were wearing black robes instead of white.

I called a lawyer anyway. I dialed up my long-time friend and former attorney David Loy who has handled countless court petitions on behalf of the American Civil Liberties Union in San Diego.

“Anyone can hypothetically believe that a federal or state agency did a bad thing,” David said, “but you don’t get to go to court and have a judge make a ruling on that if a plaintiff doesn’t have a concrete personal stake in the outcome.”

”The plaintiff must be suffering an actual injury, on the facts alleged, an actual injury that is caused by the defendants action and redressable by judicial decision.”

“The problem with that theory of standing is basically that anyone would have standing on anything. And that can’t be right.”

That’s vintage David Loy, as was his scowling laughter and salty disgust with the unsurprising ruling from Judge Kacsmaryek that saw no problems with this feather-thick argument on standing.

“So does a car mechanic have standing to sue an auto manufacturer for product defects because car mechanics have to fix a defective car?” David asked. “Does a plumber have standing to sue a pipe supply company because sooner or later that plumber’s going to have to come in and fix a pipe? I mean, it’s absurd.”

Part of the scheme put in place with help from the Federalist Society is that appeals from Judge Kacsmaryek’s district court go to the Fifth Circuit Court of Appeals. It is a reliable embarrassment too, stacked with right-wing jurists. Last Wednesday, a Fifth Circuit panel curtailed the reach of Kacsmaryek’s ruling, pending appeal, but nevertheless accepted his ruling on standing, allowing the litigation to continue. The Justice Department quickly appealed to the U.S. Supreme Court, which stayed the Fifth Circuit’s decision until the Supreme Court has a chance to weigh in on the merits of the dispute . That process also includes accounting for the ruling from Spokane-based U.S. District Court Judge Thomas Rice (Eastern District of Washington) supporting FDA’s determination and sharply criticizing not just Judge Kazmaryek’s attempted nationwide ruling, but the process of “forum shopping” by advocates.

The “forum shopping” is code for the fast-track being used—in the aftermath of the Dodd decision—to uniformly ban abortion from coast-to -coast. It’s breathtaking how quickly the Roe protections have been unraveled for women in Idaho and in southern states whose governors and legislatures are in a race, it seems, to ban all abortions, under virtually all circumstances.

The human toll is stunning, including the horrifying tale of a Florida woman, Anya Cook, who was repeatedly refused care by Florida physicians as she was having a devastating miscarriage. She lost half the blood in her body, and nearly died. This, because the doctors were afraid of being criminally liable for assisting her in what might be construed as an abortion.

It is one story of many thousands, hundreds of thousands yet to come. It is largely the story of white, male, fundamental Christian orthodoxy run amok. If men had to carry pregnancies, I doubt abortion would even be an issue. This column would be about something else.

The blasting insistence of a “right to life” from conception only gathers weight by unsanctified conjecture. It is absent from the Bible. There is no time nor ear to consider other respectable opinions and beliefs about the sanctity of life and when life begins. I’ve often wondered why we would sanctify a fetus at the moment of conception—even a fetus with a clearly fatal birth defect—above the value, the sanctity of a dog beloved by its master or its adopted human family. I’m not a dog person, but I once-married into a dog-loving family and let’s just say it begs the question. Is the dog that drops a newspaper on our lap not a life? Is the prisoner on death row not a life? I’m not raising these questions for the sake of argument, but as an appeal for soul-searching and decency before we start prosecuting doctors and young women for abortions.

The subject asks for humility and begs for compassion. It begs compassion not just for young women who get pregnant without wanting to be pregnant, but for women like Anya Cook, who are now asked to risk their lives, or suffer horribly, because a quadrant of our population feel justified in imposing their will and beliefs on everybody else. I don’t hear a peep from them about the abuse of the judicial system—nor the abuse of the politicized appointment process that wouldn’t give Merrick Garland a hearing, but would give Amy Comey Barrett the fast-track so she could swiftly join a majority to repeal Roe.

The issue of fairness is tossed aside, as if it were old lettuce, because the 11th commandment for this pious and dangerous crowd is that the-ends-justify-the-means. I think it’s just mean, and I doubt Christ would be proud to have his name stitched to it.

—tjc