March 17, 2023

The Power of a Single Judge

Russ Feingold President

Quick reminder that the early bird discount to attend our 2023 National Convention in Washington, DC, on May 18-20, ends on March 31. Register today!

We talk often about the power of the Supreme Court. This week was an alarming reminder of the power that a single lower court federal judge has – particularly when they care not about the rule of law or precedent, but about partisan gain and notoriety.

Federal District Judge Kacsmaryk’s antiabortion views are well known. As is, the propensity for conservative litigants to file suit in his district, knowing they will have a judge who makes legal decisions with partisan ideology front of mind.

This week, Judge Kacsmaryk heard oral arguments in a lawsuit filed by an antiabortion organization that is seeking an injunction on the FDA’s approval for mifepristone, one of two-drugs used in medication abortion.

A few facts about medication abortion. In the United States, doctors typically utilize a combination of two drugs: first, Mifepristone is taken orally to stop the pregnancy; second, Misoprostol is taken orally to expel the pregnancy tissue from the uterus. This combination of drugs has been used by over 5 million people for the purpose of ending a pregnancy. Mifepristone was approved by the FDA over 20 years ago and is safer than penicillin.  Over half of all abortions in the United States are medication abortions.

And yet, here is a federal judge who sounded at Wednesday’s hearing like he would be willing to ignore all of that and grant the injunction sought by the plaintiffs. The plaintiffs acknowledged during Wednesday’s hearing that there is no precedent for a judge to issue an injunction against a drug that’s been on the market for as long as Mifepristone. And yet, according to those who were in the courtroom, it sounded like Judge Kacsmaryk was open to an injunction anyway.

The impact of an injunction, to be frank, is unclear – in part because there is no precedent for it. There is also no sound legal basis for it. What is crystal clear is that an injunction would add yet more confusion and uncertainty for patients and providers involved in reproductive healthcare.

Misoprostol can be taken on its own to end a pregnancy, without Mifepristone. But there is no need to force providers or those seeking care into this option by granting an unprecedented injunction on a drug that is safe and routine. This case is shocking on its face. The precedent it would set, if successful, is further cause for alarm as it will undoubtedly inspire more antiabortion litigants to file lawsuits with no legal basis and aimed at further stripping away the bodily autonomy of people with uteruses in this country, with a disproportionate impact on already marginalized communities.

As we await Judge Kacsmaryk’s decision, we at ACS are even more determined to press the White House and the Senate to fill every single federal court vacancy over these next two years. If the Biden administration leaves even a single vacancy open at the end of 2024, there is a risk that that vacancy will be filled by a different administration and with a judge in the mold of Judge Kacsmaryk. Every vacancy would be an opportunity to put another ideologue on the bench who will issue reckless decisions devoid of legal reasoning and based purely on partisan ideology and bias.

Importance of the Courts, Reproductive Rights, Women's rights