Xavier Becerra

Fifth Circuit hears mifepristone appeal

It went more or less as you’d expect from this dumpster fire of a court. I’ll link to a bunch of straight news coverage in a bit, but what you need is the news with some analysis and snark, so here you go. First, from TPM.

A panel of 5th Circuit Court of Appeals judges — all Republican appointees — unapologetically carried water for the anti-abortion litigants Wednesday during oral arguments in a case where those litigants are trying to get an abortion pill, mifepristone, yanked from the market.

“When we celebrated Mother’s Day, did we celebrate an illness?” Judge James Ho, a Donald Trump appointee, snarked, regurgitating a false argument by the anti-abortion doctor plaintiffs that the Food and Drug Administration classified pregnancy as an illness to rush mifepristone through the approval process.

But perhaps the comedic peak of the arguments came when George W. Bush appointee Judge Jennifer Walker Elrod took time out to scold the lawyer for Danco, a manufacturer of mifepristone, for criticizing Judge Matthew Kacsmaryk, the anti-abortion district court judge that handed down the first ruling in the case. Kacsmaryk’s ruling has been widely panned, including by his fellow judges, as the latest in a series of nakedly partisan decisions.

“Your filings have been excellent, however I am concerned about some rather unusual remarks in the filings — these are remarks we don’t normally see in briefing from very esteemed counsel that talk about the district court,” Elrod said, affecting a dramatic tone to read phrases including that the district court “defied long-standing precedent” and that the court’s injunction was “an unprecedented judicial assault.”

“I’m wondering if you would have had more time and not been under a rush and probably exhausted from this whole process, would those have been statements that would have been included in your brief?” she asked.

When Danco’s lawyer pushed back, saying that the language reflected the unprecedented nature of the case, Elrod took an incredulous tone: “So you think it’s appropriate to attack the district court personally in the case in that way.” Ho soon jumped in to continue the beratement.

The three-judge panel, rounded out by Trump appointee Judge Cory Wilson, left little mystery as to how it will ultimately rule. The judges asked questions premised on the myth that mifepristone is sending floods of women to the emergency room, prompting the Department of Justice lawyer to frequently remind the judges that the drug is incredibly safe. Ho railed against the FDA, listing a series of supposed errors it made unrelated to the abortion case, seemingly to make the case that judges should overturn its experts’ decisions.

And here’s Slate.

Nothing these intellectual Lilliputians do will even matter. The Supreme Court has already decided that the 5th Circuit cannot be trusted with this case: In April, it froze the court’s previous decision stringently limiting access to mifepristone, expressly maintaining the freeze until the justices themselves take further action. Elrod, Ho, and Wilson are howling into the wind; they have no power to change a thing about federal regulation of medication abortion. The adults in the room have already put them in time-out. And rather than demonstrate that they can judge responsibly, they seized on Wednesday’s hearing to throw a combination temper tantrum/gaslight party. No lessons have been learned, no maturity acquired. This time-out probably isn’t ending anytime soon.

[…]

Sarah Harrington (for the FDA) and Jessica Ellsworth (for Danco) did an amazing job handling a comically hostile bench. But what was the point? Nobody seriously expects these robed ideologues to do their job with a modicum of integrity. Here are a few lowlights of the hearing:

•Ho credulously repeated the plaintiffs’ false claim that the FDA smuggled through mifepristone by calling pregnancy a “life-threatening illness.” (This argument rests on the lie that mifepristone went through “expedited review,” which Ho also parroted.) He asked Harrington angrily: “When we celebrated Mother’s Day, did we celebrate an illness?”

•Elrod, with evident exasperation, castigated the FDA for failing to produce a complete administrative record for the case—which, as Harrington explained, would require lawyers to compile for the court “hundreds of thousands of pages” going back to the 1990s. In response, Elrod suggested that the government was unscrupulously keeping it “a secret.”

•Wilson asserted that, by allowing medical professionals other than doctors to prescribe mifepristone, the FDA made it “much more likely” that patients will need emergency care, including surgery. (He literally just made this up.)

•Elrod suggested that Danco Laboratories should spend countless hours and resources to prepare for a judicial imposition of draconian restrictions on mifepristone just in case the court chose to do so, dismissing any costs as a minor “inconvenience.” (This, of course, completely ignored the Supreme Court’s order, which freed the defendants from this very obligation.) She also suggested, without evidence, that Danco may be complicit in smuggling the pills into states where they are banned.

•Ho read aloud random people’s criticisms of the FDA and made Ellsworth respond to them, then declared that federal courts should override the FDA’s scientific determinations because the agency isn’t trustworthy.

•Elrod chastised Ellsworth for calling Kascmaryk’s decision an “unprecedented judicial assault” in her brief, calling the rhetoric “far outside the bounds of established [criticism]” and a “personal attack” on Kacsmaryk. She then asked Ellsworth to retract the statements and apologize.

These are not serious people. This is not how real judges conduct themselves. This was barely a judicial proceeding. It was a struggle session in which three anti-abortion zealots yelled at attorneys who have already prevailed in this case once at the Supreme Court. Their rage should have been aimed at SCOTUS, but it’s not a good look for lower courts to trash-talk their superiors, so they redirected it to Harrington and Ellsworth instead.

We’ll find out soon enough, I guess. It’s going to be yet another bumpy ride. The Trib, the NYT, CNN, and Courthouse News have more, with a nice bit of live tweeting from Raffin Melkonian if you still need more.

Feds rebuke hospitals that didn’t do emergency abortions

May 6th, 2023

by Charles Kuffner.

Comments are off for this post

Relevant to our interests.

Two hospitals that refused to provide an emergency abortion to a pregnant woman who was experiencing premature labor put her life in jeopardy and violated federal law, a first-of-its-kind investigation by the federal government has found.

The findings, revealed in documents obtained by The Associated Press, are a warning to hospitals around the country as they struggle to reconcile dozens of new state laws that ban or severely restrict abortion with a federal mandate for doctors to provide abortions when a woman’s health is at risk. The competing edicts have been rolled out since the Supreme Court overturned the constitutional right to an abortion last year.

But federal law, which requires doctors to treat patients in emergency situations, trumps those state laws, the nation’s top health official said in a statement.

“Fortunately, this patient survived. But she never should have gone through the terrifying ordeal she experienced in the first place,” Health and Human Services Secretary Xavier Becerra said. “We want her, and every patient out there like her, to know that we will do everything we can to protect their lives and health, and to investigate and enforce the law to the fullest extent of our legal authority, in accordance with orders from the courts.”

The federal agency’s investigation centers on two hospitals — Freeman Health System in Joplin, Missouri, and University of Kansas Hospital in Kansas City, Kansas — that in August refused to provide an abortion to a Missouri woman whose water broke early at 17 weeks of pregnancy. Doctors at both hospitals told Mylissa Farmer that her fetus would not survive, that her amniotic fluid had emptied and that she was at risk for serious infection or losing her uterus, but they would not terminate the pregnancy because a fetal heartbeat was still detectable.

Ultimately, Farmer had to travel to an abortion clinic in Illinois.

“It was dehumanizing. It was terrifying. It was horrible not to get the care to save your life,” Farmer, who lives in Joplin, said of her experience. “I felt like I was responsible to do something, to say something, to not have this happen again to another woman. It was bad enough to be so powerless.”

Farmer’s complaints launched the first investigations that the Centers for Medicare & Medicaid Services, or CMS, has publicly acknowledged since Roe v. Wade was overturned last year. Across the country, women have reported being turned away from hospitals for abortions, despite doctors telling them that this puts them at further risk for infection or even death.

[…]

Nationwide, doctors have reported uncertainty around how to provide care to pregnant women, especially in the nearly 20 states where new laws have banned or limited the care. Doctors face criminal and civil penalties in some states for aborting a pregnancy.

But in a letter sent Monday to hospital and doctors associations that highlights the investigations, Becerra said he hopes the investigations clarify that the organizations must follow the federal law, the Emergency Medical Treatment and Labor Act, or EMTALA.

As you may recall, EMTALA has been the subject of contradictory court rulings, which likely gives it an eventual date before SCOTUS. The status of that federal law, which now depends on where you are, and its inherent conflict with various draconian state laws, surely contributes to confusion over what is and is now allowed, but it’s not just about confusion. It’s also about the very understandable reluctance of doctors and hospitals to put themselves on the line for a potential murder charge and life in prison when they’re not 100% sure they’re in the clear. As we have said many times, the vagueness and broadness of many state laws is intentional. We have that lawsuit in Texas that seeks clarity on these matters, and that will be of great importance when it comes to a courtroom. In the meantime, a strong push by the CMS to ensure access where it can is appreciated. We need much more than that, but as of right now that’s about the best we can hope for.

SCOTUS halts the anti-mifepristone ruling

Apr 22nd, 2023

by Charles Kuffner.

Comments are off for this post

Good.

The Supreme Court ruled Friday to pause lower court rulings that would have imposed restrictions on mifepristone, keeping the drug accessible while the case proceeds.

Justices Samuel Alito and Clarence Thomas would not have granted the stay.

Despite the fact that the initial lawsuit rested on dubious standing grounds and was infused with anti-abortion myths, it was strategically placed to travel through a circuit of notoriously right-wing courts up to the far-right Supreme Court.

Even those pounding the alarm about the dangers this case would pose to the Food and Drug Administration’s functioning, drug approval process and the whole pharmaceutical industry harbored doubts that the Court wouldn’t take any opportunity to further restrict abortion rights.

But the widely panned lower court rulings proved a bridge too far even for the Supreme Court that overturned Roe v. Wade.

In his dissent, Alito reels off a series of critiques lodged against the conservative majority for using the shadow docket to hand down rulings with no explanation.

“I did not agree with these criticisms at the time, but if they were warranted in the cases in which they were made, they are emphatically true here,” he huffs. “As narrowed by the Court of Appeals, the stay that would apply if we failed to broaden it would not remove mifepristone from the market.”

The Fifth Circuit Court of Appeals’ decision, at the least, would nix the FDA’s approval of generic mifepristone, potentially taking it off the market.

He then argues that nothing the court says really matters, since the FDA has enforcement discretion in which drugs to target.

“The FDA has previously invoked enforcement discretion to permit the distribution of mifepristone in a way that the regulations then in force prohibited, and here, the Government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases, much less that it would choose to take enforcement actions to which it has strong objections,” he writes.

[…]

The case will now proceed at the Fifth Circuit, which still has to rule on the merits. It’s on an expedited timeline there, with briefs due throughout May. The timing for a final decision from the appeals court is still uncertain; a likely return to the Supreme Court could come after that. The high court said the stay would remain in place until it either refused to take the case or issued a final ruling.

An initial 5th Circuit panel gave the anti-abortion group a favorable ruling, upholding challenges to mifepristone that the FDA had lifted in recent years and potentially removing the FDA approval of generic mifepristone altogether.

A coalition of blue states joined the docket, pointing out that any restriction of mifepristone enforced nationwide would impinge on their rights as states to determine their own abortion regimes — something the Supreme Court claimed was its intention in Dobbs.

See here for the previous update, and there’s a copy of the ruling at the link above. It must be emphasized that this is just putting the lower court ruling on hold while the appeals process plays out. In the end, the Fifth Circuit could rule as it did in partly staying the order, thus taking away mifepristone by mail and other things, on the same lack of evidence and hostility to the idea of abortion, with some unsubtle hints about the Comstock Act. And then SCOTUS could do whatever it wants to do, with some kind of “middle ground” between the completely lawless Kacsmaryk ruling and a full overturn as the goal. We are very much not out of danger. But at least for now, and probably until early next year when the SCOTUS ruling would be likely to be handed down, we’re back at the original status quo. That’s something. TPR, the Trib, Mother Jones, Vox, and Slate have more.

Anti-mifepristone order still paused

Apr 20th, 2023

by Charles Kuffner.

1 comment

SCOTUS needs a couple more days.

The Supreme Court extended its stay on lower court rulings on mifepristone until Friday just before midnight, meaning that the drug will remain accessible and available at least until then.

The order, written by Justice Samuel Alito, came “upon further consideration of the application of counsel for the applicants, the response and the reply.”

The Court’s initial stay would have expired just before midnight Wednesday, bringing restrictions to the drug into action.

[…]

While the Supreme Court mulls the case, action hasn’t stopped in the lower courts. In a new, separate lawsuit, the maker of generic mifepristone sued the FDA Wednesday to not revoke its approval or take it off the market without going through the mandated processes, including the Heath and Human Services Secretary declaring that the drug is an imminent risk. The company, GenBioPro, argues that court rulings don’t trump the required steps the agency has to take to remove its approval.

See here for the previous update. I didn’t see any speculation about What It All Means in the news coverage I read, but we do still have Twitter for some things:

At most, this development *maybe* tilts the odds *marginally* more in favor of a stay pending appeal (else why extend the administrative stay).

But I don’t think extending the administrative stay changes the bottom-line probabilities in any material respect.

— Steve Vladeck (@steve_vladeck) 2:32 PM – 19 April 2023

Yes, it’s very unusual for a Justice to extend an administrative stay—but Alito is the *only* Justice who regularly puts deadlines on them in the first place. For most of the Justices, administrative stays are indefinite, so never need to be “extended.”

Uniformity would be nice.

— Steve Vladeck (@steve_vladeck) 3:39 PM – 19 April 2023

Pessimistic take: The court denied a stay and a liberal is writing a dissent.

Optimistic take: The court granted a stay and a conservative is writing a dissent.

Panglossian take: The court is writing an opinion reversing the 5th Circuit and directing it to toss the case.

— Mark Joseph Stern (@mjs_DC) 2:19 PM – 19 April 2023

Make of that what you will. In the meantime, there’s that other case that was just filed.

GenBioPro, the maker of generic mifepristone, made a bid to establish a backstop Wednesday, should the Supreme Court decide to restrict one of its primary products.

The company sued the Food and Drug Administration (FDA) in federal court in Maryland, seeking assurances that the agency wouldn’t revoke its approval or try to remove it from the market.

This lawsuit, while separate, flows from the chain that started with Judge Matthew Kacsmaryk in Texas. That case is currently at the Supreme Court, which is due to hand down a ruling in the case, but which extended its stay on the lower court opinions until Friday just before midnight. As it stands, the Fifth Circuit Court of Appeals ruled to reimpose restrictions on the drug that the FDA had lifted in recent years — and to nix the agency’s 2019 approval of generic mifepristone altogether.

While that case unspooled, GenBioPro, per its Wednesday filing, has been deluging the FDA with letters in an attempt to make sure that its product won’t be yanked off the market. After getting unsatisfactory responses, the company turned to the government’s filings in the case, where it warned that “[t]he generic version of the drug would cease to be approved altogether.”

Now, the company is arguing that the FDA is prepared to illegally revoke its approval without going through the proper steps: A finding by the Heath and Human Services Secretary that the drug is an “imminent hazard” and an expedited hearing once the drug is suspended. These unprecedented court orders, GenBioPro argues, don’t trump the congressionally-delegated processes the FDA must follow to remove its product from the market.

“With the specter of criminal prosecution looming, GenBioPro may be obligated to undertake recalls, cancel contracted manufacturing and hold or destroy perishable inventory,” the company’s lawyers write. “And because of the FDA Decision and the enforcement risk and uncertainty it has created, GenBioPro is suffering irreparable financial and reputational harm, severely threatening its core business model and commercial viability.”

GenBioPro is asking that the FDA be forbidden from suspending or altering its approval, and from using its enforcement power to take it off the market, unless the agency goes through the established process to revoke the drug’s approval. It makes its arguments under a constellation of laws, including the Fifth Amendment, Administrative Procedure Act and All Writs Act.

This lawsuit is the legal equivalent of breaking glass in case of emergency. GenBioPro has its finger in the wind — and is clearly uncomfortable depending on the Supreme Court to maintain its drug’s accessibility.

Isn’t this fun? The Trib and The 19th have more.

Anti-mifepristone litigants respond to SCOTUS appeal

Apr 19th, 2023

by Charles Kuffner.

Comments are off for this post

Today we find out what SCOTUS will do.

The anti-abortion doctors who first brought the case seeking to get mifepristone yanked from the markets filed a reply brief Tuesday, starting the clock on the Supreme Court’s response.

It’s the latest entry in the case that originated in Judge Matthew Kacsmaryk’s court in Amarillo, Texas. After he ruled to stay the Food and Drug Administration’s 20-year-old approval of mifepristone, the Department of Justice appealed to the Fifth Circuit Court of Appeals. The Fifth Circuit broke from Kacsmaryk on the initial approval (though without much conviction) but upheld challenges to virtually all the changes in the drug’s regulatory scheme since 2016, reimposing a slate of onerous restrictions on mifepristone including significantly cutting how many days into a pregnancy it can be taken on-label and barring the pills from being mailed.

The government, along with a manufacturer of mifepristone, asked the Supreme Court to stay or vacate the Fifth Circuit’s ruling while it appeals that decision. The Supreme Court granted an administrative stay last week, putting those old restrictions on ice for a few more days. That stay expires just before midnight on Wednesday.

One of the toughest barriers the anti-abortion contingent has to scale in convincing the Supreme Court to let the case continue to play out at the Fifth Circuit is the clear conflict between this mifepristone case, and another out of Washington state. There, a federal judge ruled — and reaffirmed — that the FDA needs to keep mifepristone available as usual in the states and district involved. Meanwhile, the Fifth Circuit ruled to bring back the years-old restrictions nationwide.

The anti-abortion group’s lawyers largely claim that the conflict is inconsequential in their Tuesday filing, since the Washington case is still at the district court.

“There is no current circuit split, and there may never be one,” they write. “In particular, the government has not even appealed the decision from the Washington District Court which, to date, is only potentially conflicting.”

The lawyers also minimize the disruption negating years of FDA changes and updates would cause.

“The agency need only go back to its preapproved 2011 regimen and label,” they write, immediately contradicting themselves: “The ‘threat’ of conflicting orders here is also illusory, as the Fifth Circuit’s order does not require FDA to do anything.”

The government has said that adjusting the drug’s labeling alone would take “months,” and that the Fifth Circuit’s ruling would also revoke the agency’s approval of generic mifepristone — which was only granted in 2019; the branded version of Mifeprex was approved in 2000 — permanently.

See here for the previous entry. It is expected that SCOTUS will rule by tonight, because that is when their administrative hold expires. Of interest, via Axios, is that a whole bunch of Republican members of Congress filed an amicus brief on the side of the mifepristone-banners.

Details: The 147 lawmakers, led by Sen. Cindy Hyde-Smith (R-Miss.) and Rep. August Pfluger (R-Texas), filed an amicus brief asking the Supreme Court to allow the 5th Circuit Court of Appeals’ ruling reinstating mifepristone’s restrictions to take effect.

[…]

What we’re watching: The handful of signers facing competitive elections in 2024 should expect it to come up in attacks on the campaign trail, two Democratic operatives told Axios.

Reps. Lauren Boebert (R-Colo.) and Monica De La Cruz (R-Texas) are top targets for the Democratic Congressional Campaign Committee — which blasted Boebert last week for signing the 5th Circuit brief.

Sens. Ted Cruz (R-Texas) and Rick Scott (R-Fla.) are also seen as potentially vulnerable.

Rep. Alex Mooney (R-W.Va.) is also running to challenge Sen. Joe Manchin (D-W.Va.), while Reps. Matt Rosendale (R-Mont.) and Warren Davidson (R-Ohio) are considering Senate bids against Democratic incumbents.

Meanwhile, 253 Democrats last week filed a brief urging the justices to block the lower court rulings, arguing that Congress has not allowed federal courts “to substitute their judgment for the expert conclusions of FDA’s scientists.”

As before, I appreciate them clarifying the stakes here. And I better see this be a big part of the 2024 campaigns against Cruz and de la Cruz. Either these pro-reproductive choice arguments work here in Texas, or we’ll find out that they don’t and we’ll need to figure it out from there. Slate has more.

SCOTUS pauses that anti-mifepristone ruling

Apr 15th, 2023

by Charles Kuffner.

1 comment

A brief timeout.

The Supreme Court granted the Department of Justice’s emergency request to temporarily halt lower court rulings that would have reimposed restrictions on mifepristone that the Food and Drug Administration (FDA) had lifted in recent years.

The stay is in place until 11:59 p.m. ET Wednesday. The anti-abortion plaintiffs’ response to the government’s request for a stay is due by noon on Tuesday.

It’s just an administrative stay, temporarily putting the lower court orders on ice until the full Supreme Court can decide on the merits of the case. Without it, the restrictions on mifepristone would have taken effect nationwide on Saturday.

“The idea would just be to keep the ruling on hold until the Supreme Court can take a closer look at the merits and decide whether to issue a longer stay pending appeal,” Jessie Hill, associate dean and professor at Case Western Reserve University School of Law, told TPM.

The stay does not guarantee that the right-wing bench will ultimately reverse the lower courts.

[…]

If the Supreme Court majority ultimately prioritizes its hostility to abortion access over the standing issues, the FDA may be able to mitigate some of the damage, depending on how it uses its enforcement discretion.

So far, the White House told TPM that it wouldn’t “ignore” the lower court rulings and keep mifepristone on the market as usual, but it’s unclear whether that stance will hold if the administration is defeated at court.

See here for the previous update. This action was widely expected, and doesn’t mean anything about how SCOTUS will ultimately rule. It’s just that SCOTUS had a clear need to intervene, and we’ll know more on Wednesday. So try to put this out of your mind for a few hours and enjoy the weekend. The 19th has more.

Fifth Circuit barely limits ridiculous anti-mifepristone ruling

Apr 14th, 2023

by Charles Kuffner.

1 comment

In other words, the Fifth Circuit did Fifth Circuit things.

The notoriously right-wing Fifth Circuit Court of Appeals upheld much of Judge Matthew Kacsmaryk’s ruling on mifepristone from late last week in an early Thursday decision that may prompt the Justice Department to seek relief from the Supreme Court.

Kacsmaryk stayed the Food and Drug Administration’s (FDA) 2000 approval of mifepristone last week based on both anti-abortion myths regarding the dangerousness of the drug, and on near-universally panned contortions of standing and timeliness.

The Fifth Circuit panel broke from Kacsmaryk on rejecting the 2000 FDA approval, saying that the six-year statute of limitations to challenge that agency action has passed (though without much conviction, saying that the anti-abortion plaintiffs may win on that topic at another stage of litigation). But it agreed with Kacsmaryk on nearly everything else.

The panel — comprised of two Donald Trump appointees, and one George W. Bush appointee — would let mifepristone remain on the market with FDA approval, but would reject many of the steps to expand access and lift restrictions that the FDA has taken since 2016. That means that mifepristone would only be available under the previous, much more restrictive regime: allowed to be used only up until 50 days into a pregnancy versus 70, with patients required to have multiple in-person visits with a provider, and the pills not allowed to be mailed. (The Bush appointee said she wanted to grant an administrative stay, and to punt a decision on the stay pending appeal to the argument panel — meaning this decision comes courtesy of the two Trump judges.)

Mifepristone has always been subject to an unusually harsh set of restrictions on its use and prescription, which the medical community has soundly criticized as based in politics and not medical fact.

The Fifth Circuit panel’s ruling is shot through with similar ideological, non-scientific, anti-abortion rhetoric to that which peppers Kacsmaryk’s decision.

“As a result of FDA’s failure to regulate this potent drug, these doctors have had to devote significant time and resources to caring for women experiencing mifepristone’s harmful effects,” the panel writes, a regurgitation of anti-abortion lies about mifepristone being particularly dangerous.

At another point, the panel refers to a fetus as an “unborn child” — a term that is often shorthand for the idea of fetal personhood, the anti-abortion theory that fetuses are essentially just small children with rights under the 14th Amendment, so all abortion is murder.

But the appeals court’s cosigning of Kacsmaryk’s novel interpretations of standing alone will likely be enough for the DOJ to appeal.

See here, here, and here for the background. Some of the coverage I’ve seen has put the focus of the ruling on the injunction against the 2000 approval of mifepristone, which is the one thing the Fifth Circuit stayed. But that really isn’t the main feature of this ruling, it’s the acceptance of so much of Kacsmaryk’s bonkers interpretation of standing as well as his wingnut-infused rejection of the science.

The panel ruled that the challenge to the 2000 approval of mifepristone itself is likely time-barred, so it froze that part of the ruling. But it *didn’t* freeze Kacsmaryk’s block of the 2016 and 2021 revisions that (1) make mifepristone available up to 10 weeks; and (2) by mail.

— Steve Vladeck (@steve_vladeck) 6:34 AM – 13 April 2023

As for what happens next, it seems to me that the FDA and Danco Laboratories still have very good arguments to ask #SCOTUS to freeze Kacsmaryk’s order in full; the majority’s standing, merits, and irreparable harm analyses re: the 2016 and 2021 changes are … not exactly obvious.

— Steve Vladeck (@steve_vladeck) 6:34 AM – 13 April 2023

We’ll see what happens next. The Fifth Circuit froze the craziest, most harmful parts of Kacsmaryk’s ruling, but *its* ruling last night will still significantly *limit* access to mifepristone going forward.

That’s a big deal, but maybe *not* big enough for #SCOTUS to push back.

— Steve Vladeck (@steve_vladeck) 6:34 AM – 13 April 2023

That’s the big picture. You can get more detail here, and Chris Geidner has a good thread here. Remember also, that Washington court ruling, which directly contradicts this one, and which Slate’s Mark Joseph Stern says offers the FDA the perfect opening to just follow what the Washington court ordered, as it “more explicitly obligates the agency to maintain mifepristone access in most states where abortion remains legal”.

This mess is now on SCOTUS’ doorstep, as the Justice Department is seeking emergency relief. I assume they will take action, but we saw how pusillanimous they were with SB8. Unless SCOTUS steps in by the end of the day today, access to mifepristone will be severely curtailed even as the nationwide injunction is put on hold. It’s chaos, it’s a terrible ruling for the pharmaceutical industry, and they have taken notice. We’ll see what comes of that. NBC News, NPR, Slate’s Dahlia Lithwick, Daily Kos, and the Trib have more.

UPDATE: Clarification from Washington:

Judge Thomas Rice in the eastern district of Washington responded Thursday to government lawyers asking how they should comply with contradictory rulings on mifepristone that both came down Friday evening, one of which Rice wrote.

He told them that, regardless of the ruling out of Texas, the government must comply with his order to keep mifepristone available as usual in the 17 states plus Washington D.C. that are part of the case.

“That order is currently stayed and was not in effect at the time of this Court’s preliminary injunction,” he said of Judge Matthew Kacsmaryk’s ruling, which had stayed the Food and Drug Administration’s (FDA) approval of mifepristone. Aspects of Kacsmaryk’s ruling were stayed by the Fifth Circuit Court of Appeals Thursday morning. “Under these circumstances, because the Court has jurisdiction over the parties before it and limited its preliminary injunction only to the Plaintiff States and the District of Columbia, this Court’s preliminary injunction was effective as of April 7, 2023 and must be followed by Defendants.”

He added that “irrespective of the Northern District of Texas Court ruling or the Fifth Circuit’s anticipated ruling,” defendants are prohibited from “altering the status quo and rights as it relates to the availability of Mifepristone under the current operative January 2023 Risk Evaluation and Mitigation Strategy under 21 U.S.C. § 355-1 in Plaintiff States and the District of Columbia.”

Okay then.

Tuesday mifepristone update

Apr 11th, 2023

by Charles Kuffner.

1 comment

First things first, that lawless ruling from the wingnut Texas judge has been appealed.

The U.S. Justice Department on Monday asked a federal appeals court to keep the abortion pill mifepristone on the U.S. market as litigation plays out, days after a federal judge suspended the Food and Drug Administration’s approval of the medication nationwide.

The DOJ asked the U.S. 5th Circuit Court of Appeals to block U.S. Judge Matthew Kacsmaryk’s unprecedented decision from taking effect. The U.S. government’s lawyers said “there is no basis for extraordinary nationwide relief that would upend a decades-long status quo.”

“If allowed to take effect, that order will irreparably harm patients, healthcare systems, and businesses,” the Justice Department lawyers wrote in a court filing.

Kacsmaryk of the U.S. Northern District of Texas said Friday that his decision to suspend the FDA approval of mifepristone would not go into effect for seven days so mifepristone distributor Danco Laboratories and the Biden administration had time to appeal.

“The Court should immediately extend the administrative stay and then stay the district court’s order pending appeal,” the Justice Department lawyers told the 5th Circuit.

Danco will likely ask the Supreme Court to intervene if the 5th Circuit does not grant the request to halt Kacsmaryk’s decision from taking effect, the company’s attorney Jessica Ellsworth said.

“I anticipate that if the Fifth Circuit does not grant a stay or at least an administrative stay, which is sort of a short term stay so it has time to consider the stay request in an orderly fashion, either Danco and or the United States will ask the U.S. Supreme Court for a stay,” Ellsworth said during a call with reporters on Monday.

When asked whether Danco will stop distributing mifepristone if Kacsmaryk’s decision takes effect this Friday, Ellsworth said the company will consult with the FDA about how to proceed.

“I think there will be some difficult questions that Danco needs to address and some conversations that it will need to have with FDA around what happens next,” Ellsworth said.

See here and here for the background. In theory, there should be an answer soon on this. In the meantime, the Justice Department has also asked for a clarification from the judge who issued the other ruling.

Eastern District of Washington Judge Thomas Rice ruled Friday that the Food and Drug Administration (FDA) has to maintain the “status quo” in keeping the drug available for the states involved in the case. A coalition of Democratic attorneys general had filed suit to lift some of the long-time restrictions that make mifepristone singularly hard to access, and which the medical community has long opposed as political and not medical in nature.

Minutes before, Judge Matthew Kacsmaryk out of the northern district of Texas stayed the FDA’s approval of the drug nationwide (a ruling that will go into effect after a seven-day delay). The two decisions were forced into conflict, and the issue will likely reach the Supreme Court.

On Monday, the government lawyers involved in the Washington case — where they oppose the bid to get the FDA to lift all of mifepristone’s restrictions — asked the judge for clarification.

“The result of that order appears to be in significant tension with this Court’s order prohibiting FDA from ‘altering the status quo and rights as it relates to the availability of Mifepristone’ in Plaintiff States,” the lawyers write of Kacsmaryk’s decision. “The Court did not address the interaction between the two orders, presumably because they were issued less than 20 minutes apart. To ensure that Defendants comply with all court orders in these unusual circumstances, Defendants respectfully request that this Court clarify their obligations under its preliminary injunction in the event that the Alliance order takes effect and stays the approval of mifepristone.”

The technical legal term for this situation is “clusterfuck”. Don’t ask me how I know these things, I just do. As for what the administration may do if the Fifth Circuit does its usual Fifth Circuit bullshit, they say they will not ignore the wingnut ruling despite some calls for them to do so.

“I believe the Food and Drug Administration has the authority to ignore this ruling, which is why I’m again calling on President Biden and the FDA to do just that,” Sen. Ron Wyden (D-OR) said Friday. “The FDA, doctors, and pharmacies can and must go about their jobs like nothing has changed and keep mifepristone accessible to women across America. If they don’t, the consequences of banning the most common method of abortion in every single state will be devastating.”

Sens. Elizabeth Warren (D-MA) and Mazie Hirono (D-HI) recently appealed to the White House to use any tools at its disposal to keep the drug available, including its enforcement discretion. Rep. Alexandria Ocasio-Cortez (D-NY) also called on the administration to “ignore” the Friday decision.

The White House told TPM Monday that it will not heed those calls.

“No,” a White House spokesperson said, when asked whether it plans to ignore Kacsmaryk’s ruling, and any future decisions upholding it, and have the FDA use its enforcement discretion to leave mifepristone on the market.

“We stand by FDA’s approval of mifepristone, and we are prepared for a long legal fight, if needed,” the spokesperson continued. “The focus of the Administration is on ensuring that we prevail in the courts. There is a process in place for appealing this decision and we will pursue that process vigorously and do everything we can to prevail in the courts.”

It’s in keeping with how members of the administration have talked publicly about the case — emphasizing the judicial procedure, though not talking about what it’ll do if its attempts to go through a series of right-wing courts to retain FDA approval are unsuccessful.

[…]

Major abortion providers made it clear that at least for the duration of Kacsmaryk’s delay, nothing has changed.

“Like we said before — we follow directives from the FDA, and not anti-abortion judges in Texas who lack any formal medical training,” Whole Woman’s Health said in a tweet. “Whole Woman’s Health will continue to dispense Mife in our clinics and our Pills by Mail Program for the next week as we monitor both decisions.”

“Nothing has changed yet: medication abortions with mifepristone are still available,” Trust Women tweeted. “Now, as ever, it’s critically important to support your local abortion funds and clinics, and contact your legislators and demand that mife remains legal health care.”

It should be noted that “not ignoring the wingnut decision” does not mean pulling mifepristone off the shelves:

If the FDA uses its enforcement discretion, what it is doing is recognizing that approval is stayed, not ignoring it. In the face of a drug with stayed approval, the FDA is saying we are assessing what drugs are unsafe and risky, and going after those, not mifepristone. /2

— David S. Cohen (@dsc250) 9:39 AM – 10 April 2023

To be clear, we may get to the point of needing to ignore the court. I’m not against that if extreme situations dictate. But Kacsmaryk did NOT order FDA or Danco to do anything. Making his order into something it isn’t gives him too much power and us, Biden, & FDA too little. /4

— David S. Cohen (@dsc250) 9:42 AM – 10 April 2023

PS. Think of it this way: which is the Biden FDA more likely to do? Ignore a court or use a long-recognized legal option supported by unanimous Supreme Court authority? Language matters here!

— David S. Cohen (@dsc250) 10:00 AM – 10 April 2023

Something to think about. Finally, while it’s highly unlikely to get anywhere, there is a legislative solution out there.

Democratic lawmakers are mobilizing in the wake of the decision in Texas that threw access to the so-called abortion pill into flux Friday, introducing legislation Monday to protect access to the most widely used form of abortion in the U.S.

Reps. Pat Ryan of New York and Lizzie Fletcher of Texas will introduce the Protecting Reproductive Freedom Act on Monday during a pro forma session of the House, seeking to reaffirm the Food and Drug Administration’s final approval authority on medication abortion and continue to allow providers to prescribe the abortion pill via telehealth, which was widely expanded during the coronavirus pandemic.

“The Texas decision has nothing to do with science or medicine and everything to do with radical groups whose only goal is a national abortion ban,” said Ryan, who credits wins in his swing district in New York state in part to his stance on abortion rights. “My priority is protecting abortion access for women in New York and across the country.”

Fletcher, who called her state, Texas, “the epicenter of attacks on the health and freedom of Americans,” said “the unprecedented district court decision, which, if enforced, would be devastating to women and families across our country and to our established drug-approval system.”

It’s yet another move from congressional Democrats to send a message about the issue of reproductive access, despite the unlikelihood that the legislation will ever pass the GOP-controlled House. Nevertheless, Democrats will continue to keep the focus on abortion access — especially after having seen its power across the country in the 2022 midterms.

There’s basically no chance that this bill will see the light of day in the Republican-controlled House. As a messaging effort, it can be effective. Everyone has to make it clear what is being voted on next year. Daily Kos and The 19th have more.

We await what’s next with mifepristone

Apr 10th, 2023

by Charles Kuffner.

2 comments

“Everything is on the table”, whatever that ultimately means.

Secretary of Health and Human Services Xavier Becerra said the administration is willing to do whatever it takes to protect access to the abortion drug mifepristone, after a federal judge in Texas suspended the FDA’s approval of the medication on Friday. As my colleague Madison Pauly reported, the ruling could have “potentially explosive implications for the availability of abortion nationwide, regardless of state laws and policies.” In a conflicting ruling the same day, a federal judge in Washington state ruled that the FDA should not make any changes to access to mifepristone, though it remains unclear what the result of the dueling orders will be.

The Department of Justice filed an appeal immediately after the Texas ruling, and is seeking a stay of the judge’s decision that would allow mifepristone to stay on the market. In interviews Sunday morning with MSNBC and CNN, Becerra emphasized an aggressive legal strategy as essential to maintain access to the pill, which has been proven to be a safe and effective part of medication abortion. “We will make sure that we get that appeal and that stay, and if we can’t get that stay, we will go as far as we need to go in order to protect access to mifepristone,” Becerra told MSNBC Sunday Show host Jonathan Capehart.

[…]

Becerra also said the ruling could have dangerous implications for access to other drugs beyond mifepristone—which was approved by the same FDA process as many other essential medications. He warned that the decision could set a precedent that allows any person with an ideological objection to a medication to file a similar lawsuit. “If you can turn upside down the entire process that the FDA relies on not just for mifepristone, but insulin, vaccines, you name it…you put essentially every drug in America at some form of risk,” he told MSNBC.

See here for the background. I don’t have anything to add, so here’s a bit of additional reading for you.

Think about pharmaceutical companies that want to crush a competitor.

Kacsmaryk has given these companies an opening to secure a nationwide block on a competing drug’s FDA approval, thereby pulling it from the market, by suing over side effects. That is insane.

— Mark Joseph Stern (@mjs_DC) 11:35 AM – 8 April 2023

The Anti-Abortion Movement Will Sacrifice Anything to Control Women

The Hideous Resurrection of the Comstock Act

Hopefully things will at least be a bit clearer soon. Until then, well, at least the stakes are clearer.

Texas clinics begin compliance with that wingnut anti-birth control court order

Jan 5th, 2023

by Charles Kuffner.

Comments are off for this post

Infuriating but expected.

Texas teens will now need their parents’ permission to get birth control at federally funded clinics, following a court ruling late last month.

These clinics, funded through a program called Title X, provide free, confidential contraception to anyone regardless of age, income or immigration status; before this ruling, Title X was one of the only ways teens in Texas could obtain birth control without parental consent.

U.S. District Judge Matthew Kacsmaryk ruled in December that the program violates parents’ rights and state and federal law. The U.S. Department of Health and Human Services has asked the court to reconsider that decision.

But in the meantime, Texas’ Title X administrator, Every Body Texas, has advised its 156 clinics to require parental consent for minors “out of an abundance of caution” as it awaits further guidance from HHS.

“We hope that as the case proceeds, we are able to revoke this guidance and continue to provide minors in Texas the sexual and reproductive care they need and deserve with or without parental consent,” said Stephanie LeBleu, acting Title X project director at Every Body Texas.

Minors can still access testing and treatment for sexually transmitted infections, pregnancy tests, emergency contraception, condoms and counseling without parental consent, LeBleu said.

[…]

The case was brought by Jonathan Mitchell, the former Texas solicitor general who masterminded the state’s ban on abortions after about six weeks of pregnancy. Mitchell is representing Alexander Deanda, a father of three daughters.

Deanda is raising his daughters “in accordance with Christian teaching on matters of sexuality, which requires unmarried children to practice abstinence and refrain from sexual intercourse until marriage,” according to the complaint.

Neither Deanda nor his daughters have sought services at a Title X clinic, per the complaint. But Kacsmaryk ruled that the program violates Deanda’s rights under the Texas Family Code and the Due Process Clause of the 14th Amendment, denying him the “fundamental right to control and direct the upbringing of his minor children.”

See here and here for the background. Of the many annoying things about this is the obvious-even-to-a-non-lawyer-like-me question of standing. As in, how exactly is this guy injured in any way by the existence of this policy? My daughters have never sought services at a Title X clinic either. Am they now injured because they would have to get my permission to get birth control there? I know I’m asking for a rational answer for an irrational ruling, but I don’t get it.

And speaking of harms, this story came out a few hours after the previous one.

In Sabine County, pine trees outnumber the people. To commute between Pineland and Hemphill, the two towns that anchor the county, residents drive down a road that winds through a national forest. The towns are dotted with churches that loom large in daily community life. Bible scriptures are printed on plaques in local stores and even in Gilder’s office.

Research has shown access to contraception and comprehensive sex education prevents unplanned pregnancies. But for sexually active teens trying not to get pregnant in Sabine County, it’s hard to access either.

Sex education in Texas is taught amid tight parameters and bureaucratic strings. Texas schools have to offer health class at the middle school level, but parents must opt their children in to any lessons about sexual health. And when teachers do touch on sex education, state law requires them to stress abstinence as the preferred choice before marriage.

Even if teens in this region want contraception, it’s nearly impossible to get without parental consent. In small towns like Hemphill and Pineland, parents have eyes and ears everywhere, making teens reluctant to go to the local Brookshire Brothers or dollar store to purchase condoms. They could go to a family planning clinic, which provides contraception at little to no cost, but only clinics funded through the federal Title X program do not require parental permission — and a federal judge in Texas ruled last month that the program violates parents’ rights and state and federal law.

As Every Body Texas, the nonprofit group that is the state’s Title X administrator, awaits guidance from the U.S. Department of Health and Human Services on how to proceed, it informed Texas providers this week to require parental consent out of precaution.

Today, family planning programs are few and far between, thanks to funding cuts by the Texas Legislature in 2011. No family planning clinic exists in Sabine County. To get to the nearest one, teens in the region must travel to an adjacent county.

Meanwhile, Texas has one of the highest teen birth rates in the country. And in 2020, Sabine County’s teen birth rate was three times the statewide average. Nearly 7% of Sabine County teenage girls between the ages of 15 and 19 gave birth that year, compared with about 2% statewide.

You know where those parents don’t have eyes and ears? All the places where their teenage children are having unsafe sex and getting pregnant as a result. Funny how that works.

You can be gay, you just can’t act gay

Oct 9th, 2022

by Charles Kuffner.

Comments are off for this post

So rules a notoriously anti-gay Trump judge, narrowing a SCOTUS ruling from just two years ago at the behest of the usual suspect.

A federal judge has ruled that Biden administration guidelines requiring employers to provide protections for LGBTQ employees go too far, in a win for Texas Attorney General Ken Paxton, who brought suit against the rules last fall.

The rules were first issued after the landmark ruling in Bostock v. Clayton County in 2020, in which the Supreme Court ruled that Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, sex or religion, includes protection for gay and transgender people.

In 2021, the Biden administration released guidance around the ruling, noting that disallowing transgender employees to dress and use pronouns and bathrooms consistent with their gender identity constituted sex discrimination.

Judge Matthew Kacsmaryk, a Donald Trump-appointed U.S. district court judge for the Northern District of Texas, found that Title VII prohibits employment discrimination against an individual for being gay or transgender, “but not necessarily all correlated conduct,” including use of pronouns, dress and bathrooms.

Earlier this year, after Paxton issued a nonbinding legal opinion that gender-affirming medical care for transgender minors could be considered child abuse, Health and Human Services Secretary Xavier Becerra released additional guidance that federally funded agencies can’t restrict people from accessing “medically necessary care, including gender-affirming care, from their health care provider solely on the basis of their sex assigned at birth or gender identity.” Kacsmaryk also ruled to vacate that guidance.

[…]

Kacsmaryk is himself known for his opposition to expanding or protecting LGBTQ rights. Before being nominated to the bench, Kacsmaryk was the deputy general counsel for the First Liberty Institute, a conservative legal organization focused on religious liberty cases. In a 2015 article arguing against the Equality Act, Kacsmaryk wrote that the proposed legislation that would prohibit discrimination based on sex, sexual orientation or gender identity would “punish dissenters, giving no quarter to Americans who continue to believe that marriage and sexual relations are reserved to the union of one man and one woman.”

In a 2015 article for the National Catholic Register titled “The Abolition of Man … and Woman,” Kacsmaryk called the term gender identity “problematic” and wrote that, “The campaigns for same-sex ‘marriage’ and ‘sexual orientation’ and ‘gender identity’ (SOGI) legislation share a common legal theory: Rules predicated on the sexual difference and complementarity of man and woman are relics of a benighted legal regime designed to harm ‘LGBT’ persons, or at least deny them ‘full equality.’”

I wonder sometimes how Ken Paxton would do if instead of being able to pick his judges he always had to argue his cases in front of a judge that, you know, ruled on the law and the merits of the case rather than on what they felt like. Probably would have a lower batting average, I’m thinking. Anyway, that ruling was 6-3, with Gorsuch the author and Roberts joining him and the (at the time) four liberals. That means that five judges who ruled for the plaintiffs are still there. It’s certainly possible, maybe even likely, that the Biden administration read that ruling in as expansive a manner as they thought they could, and as such they could have overstepped what SCOTUS had in mind. I suppose we’ll get to find out, once the Fifth Circuit does its duty of upholding the ruling. We know that in general this SCOTUS doesn’t give a crap about precedent, but maybe they’ll feel differently when it’s their own precedent.

A different EMTALA ruling in Idaho

Aug 26th, 2022

by Charles Kuffner.

Comments are off for this post

As expected. You know where this goes from here.

A federal judge on Wednesday blocked Idaho from enforcing a ban on abortions when pregnant women require emergency care, a day after a judge in Texas ruled against President Joe Biden’s administration on the same issue.

The conflicting rulings came in two of the first lawsuits over Biden’s attempts to keep abortion legal after the conservative majority U.S. Supreme Court in June overturned the 1973 Roe v. Wade decision that legalized the procedure nationwide.

Legal experts said the dueling rulings in Idaho and Texas could, if upheld on appeal, force the Supreme Court to wade back into the debate.

[…]

In Idaho, U.S. District Judge B. Lynn Winmill agreed with the U.S. Department of Justice that the abortion ban taking effect Thursday conflicts with a federal law that ensures patients can receive emergency “stabilizing care.”

Winmill, who was appointed to the court by former Democratic President Bill Clinton, issued a preliminary injunction blocking Idaho from enforcing its ban to the extent it conflicts with federal law, citing the threat to patients.

“One cannot imagine the anxiety and fear (a pregnant woman) will experience if her doctors feel hobbled by an Idaho law that does not allow them to provide the medical care necessary to preserve her health and life,” Winmill wrote.

The Justice Department has said the federal Emergency Medical Treatment and Labor Act requires abortion care in emergency situations.

“Today’s decision by the District Court for the District of Idaho ensures that women in the State of Idaho can obtain the emergency medical treatment to which they are entitled under federal law,” U.S. Attorney General Merrick Garland said in a written statement.

“The Department of Justice will continue to use every tool at its disposal to defend the reproductive rights protected by federal law,” Garland said. The DOJ has said that it disagrees with the Texas ruling and is considering next legal steps.

See here for the background. TPM goes deeper into the two rulings and also provides copies of them, but the bottom line is that the Texas judge said that the federal guidance went too far, didn’t go through the formal rule-change process (even though it was guidance on an existing rule and not a change), didn’t take the rights of the fetus into account, and could only apply when the mother’s life was in danger, not just when her health was threatened. The Idaho judge didn’t do any of that.

Both rulings will be appealed, and as Idaho is in the more liberal Ninth Circuit, there’s a very good chance that this ruling will be upheld. The same is true for Texas, where the radical and lawless Fifth Circuit will get its paws on it. While it is usually the case that a split in the appellate courts means that SCOTUS will weigh in, it seems possible to me that they will duck the issue, perhaps on the grounds that this is really a dispute over state laws, and since the Texas case applies only to Texas, there’s no need for them to step in. I’m just guessing, I could easily be wrong. We’ll know soon enough. DAily Kos has more.

Restraining order granted in Paxton’s EMTALA lawsuit

Aug 25th, 2022

by Charles Kuffner.

1 comment

Ugh.

Texas hospitals will not be required to provide emergency abortions after a federal judge ruled the Biden administration was unauthorized to enforce such a rule.

U.S. District Judge James Wesley Hendrix in Lubbock ruled that the guidance by the U.S. Department of Health and Human Services went beyond the text of a related federal law, Reuters reported. The judge’s ruling agreed with Republican Texas Attorney General Ken Paxton.

Hendrix, who was appointed by former President Donald Trump, only barred federal regulators from enforcing the guidance and its interpretation of the Emergency Medical Treatment and Active Labor Act in Texas, and against two anti-abortion groups of doctors. The judge declined to enjoin the guidance nationwide.

[…]

The ruling is the latest in an ongoing battle for abortion rights in Texas and other conservative-led states. When the U.S. Supreme Court overturned abortion rights in the country, Texas had a clear path for its “trigger law” that bans almost all abortions, which goes into effect Thursday.

The Biden administration’s guidance was an attempted response to concerns about the health of pregnant patients being turned away or delayed care by hospitals worried about abortion bans. The Texas Medical Association wrote a letter asking state regulators to “prevent any wrongful intrusion into the practice of medicine.”

See here for the background. At least this time it’s just limited to the state and not nationwide, though of course it’s our effed-up state that needed this to be decided differently. As TPM notes, there’s a similar case in Idaho that may have a ruling by the time you read this, so we’re going to be fighting this out in the appeals courts and then very likely SCOTUS. Joy.

I often say that I Am Not A Lawyer in posts about legal things. I say that in part to make it clear that my analysis is that of a layperson, and one should be wary of accepting my acumen of the finer points of legal theory. But that also frees me to an extent of the concern about the technicalities and lets me just focus on the things that should matter, whether they actually will in a real courtroom or not. As a prime example of this, let’s look at a bit of the judge’s ruling. I’m quoting from that TPM story now:

“That Guidance goes well beyond EMTALA’s text, which protects both mothers and unborn children, is silent as to abortion, and preempts state law only when the two directly conflict,” Hendrix writes.

Siding with the two groups of anti-abortion physicians as well as the state of Texas, Hendrix writes that the HHS guidance requiring physicians to act when the woman’s health is at risk is too generous.

“The Guidance states that EMTALA may require an abortion when the health of the pregnant woman is in serious jeopardy,” he says. “Texas law, on the other hand, limits abortions to when the medical condition is life-threatening, and HLPA goes further to expressly limit the condition to a physical condition,” he adds, referring to Texas’ trigger law that outlaws abortions in most cases.

He argues that the guidance also does away with consideration for the embryo or fetus. The government contends that, when the wellbeing of the woman and embryo or fetus are in conflict, it should be the pregnant patient who decides whether or not to go forth with an abortion. Hendrix says that the decision should be taken out of the woman’s hands and put into the doctor’s — who has to then comply with state law.

He also dips into agency power arguments to hack back the guidance, claiming that Congress has not resolved the specific question at play.

“Specifically, the question at issue here is whether Congress has directly addressed whether physicians must perform abortions when they believe that it would resolve a pregnant woman’s emergency medical condition, irrespective of the unborn child’s health and state law,” he writes. “Congress has not.”

In other words, unless you the doctor who may get prosecuted for murder are sure the pregnant person is going to die, you have to let them suffer. I don’t care about the legal technicalities, I’m here to say that if you’re capable of committing these words to a document, you’re a goddamned sociopath and you have no business having power of any kind. That of course also applies to Ken Paxton and Greg Abbott and every single member of the Legislature who voted for these barbaric laws. It’s what this election is about. And I should note that Slate’s Mark Joseph Stern, who is an actual lawyer, sees this the same way I do. So there. Daily Kos and CNN have more.

Paxton sues over emergency guidance to doctors

Jul 15th, 2022

by Charles Kuffner.

1 comment

This is what “leaving it to the states” looks like.

Best mugshot ever

Texas is suing the Biden administration over guidance released Monday telling the nation’s doctors they’re protected by federal law to terminate a pregnancy as part of emergency treatment — and threatening to defund hospitals that don’t perform these procedures.

The Biden administration’s guidance states that federal law requires doctors to perform abortions for pregnant people in emergency rooms when it is “the stabilizing treatment necessary” to resolve a medical emergency, including treatments for ectopic pregnancy, hypertension and preeclampsia.

On Wednesday, the Biden administration also warned retail pharmacies that they must fill prescriptions for pills that can induce abortion or risk violating federal civil rights law.

These two recent actions pit the federal executive branch against state governments after the U.S. Supreme Court undid a nearly half-century-old precedent that had affirmed access to abortion as a constitutional right.

Texas Attorney General Ken Paxton’s office filed the suit challenging the guidance in federal court on Thursday, saying the Biden administration’s guidance violates the state’s “sovereign interest in the power to create and enforce a legal code.”

[…]

The Biden administration reassured the nation’s doctors that they don’t need to wait until a patient’s health deteriorates before acting and that they can act in cases where nontreatment would result in serious impairment, guidance that comes as medical professionals in Texas and other states where abortion is banned are trying to figure out what kind of women’s health care is allowed under new restrictions. The guidance isn’t seeking to update existing law but is said to clarify a hospital’s duties under the Emergency Medical Treatment and Active Labor Act.

I thought it was federal law that was sovereign, but what do I know? I know that if Paxton gets his way women are going to die because doctors won’t be able to treat them properly and in a timely fashion. That’s what’s really at stake here. And I expect Paxton to get his way, at least at first. The Chron points out the obvious:

The case underscores the dominant position that conservative Republicans hold in the federal judicial system: Paxton filed the case in Lubbock, in the U.S. Northern District of Texas, where there are 12 judges, 10 of whom were appointed by Republican presidents and six of whom were named by former President Donald J. Trump.

If Paxton were to lose, the case would go to the Fifth Circuit Court in New Orleans, widely recognized as one of the most conservative federal appellate courts in the country, and the final step would be the Supreme Court, which ruled last month to overturn Roe v Wade in the first place.

I guarantee you, whatever the district court judge does, the Fifth Circuit will give Ken Paxton what he wants because that’s what they do. And then SCOTUS gets to make another abortion ruling. Great system we have here, isn’t it?

I had drafted a post about the imminent threat to EMTALA that the Biden administration’s guidance had queued up, and then made the mistake of not publishing it in time to keep up with the news cycle. My bad. The original post is beneath the fold. I stand by what I said in this post. Now let’s bring the fight that this requires. Daily Kos and Mother Jones have more.

(more…)

Looks like Texas didn’t even have to sue to keep Title 42 from ending

Apr 27th, 2022

by Charles Kuffner.

Comments are off for this post

A different Trump judge already put it in the bag for them.

A federal judge in Louisiana plans to temporarily block the Biden administration from ending Title 42, a pandemic-era health order used by federal immigration officials to expel migrants, including asylum-seekers, at the U.S.-Mexico border.

The temporary restraining order is expected in a lawsuit brought by Louisiana, Arizona and Missouri after the Centers for Disease Control and Prevention announced it would let the order expire May 23. The details of such a restraining order were not available late Monday.

“The parties will confer regarding the specific terms to be contained in the Temporary Restraining Order and attempt to reach agreement,” according to minutes from a Monday status conference in the case.

See here for the background. Sure is convenient to have a Trump judge for all purposes, isn’t it? Daily Kos has more.

What has Texas done to deserve ARPA-H?

Apr 27th, 2022

by Charles Kuffner.

13 comments

Good question.

Texas’ top medical institutions are vying to become home to a new federal research institution that would distribute billions of dollars to help discover cures and treatments for the world’s most intractable diseases.

From MD Anderson Cancer Center in Houston to Southwestern Hospital in Dallas, the state’s leading medical institutions are making the case that Texas and its booming health care sector are a better choice than more established research centers such as Boston and New York to house President Joe Biden’s Advanced Research Projects Agency-Health, or ARPA-H.

The headquarters would direct the spending of billions of dollars a year toward what the Biden administration describes as, “transformative high-risk, high-reward research,” with the aim of finding cures to cancer, Alzheimer’s and a variety of infectious diseases.

“Naturally people think about the East and West coast because of the size,” said Bill McKeon, president of Texas Medical Center in Houston. “But twice a week I get a call from VIPs who can go anywhere, and they’re trying to find a way to get into MD Anderson, Baylor or Methodist.”

The Biden administration already has $1 billion in appropriations to launch ARPA-H and set up a new headquarters, while awaiting action from Congress on an additional $5 billion funding request. If that funding is approved, a decision on the location is expected within the next six months.

So far, Health and Human Services Secretary Xavier Becerra has only said ARPA-H will not be located at the National Institutes of Health headquarters, the government’s largest research agency with a budget of more than $45 billion, which is located outside Washington.

McKeon along with Houston Mayor Sylvester Turner are making the case for Houston, which claims the world’s largest medical complex in Texas Medical Center, housing not only MD Anderson, Houston Methodist, Memorial Hermann and the Baylor College of Medicine, but also 18 other hospitals.

Their counterparts in Dallas, Austin and San Antonio are each making the case for their cities and medical facilities, including the University of Texas-Austin and the San Antonio Military Medical Center, the Defense Department’s largest health care institution.

But wherever it lands, the priority is getting ARPA-H in Texas, said Thomas Graham, spokesman for the Coalition for Health Advancement and Research in Texas, through which the four cities are working together.

Whether Biden would be willing to locate a major federal institution in a Republican-controlled state with a reputation for challenging federal laws and regulation — including the landmark Affordable Care Act — remains to be seen. The Texas coalition is already making its case to the Office of Science and Technology Policy, with assistance from Texas Republican Sen. John Cornyn’s office.

“Our staff has engaged on their behalf with OSTP and asked that the process for selecting a site be fair and transparent,” a spokesman for Cornyn’s office said.

That’s the same John Cornyn who just spent a week asking why the queers should be allowed to get married while his junior colleague drooled and babbled about child predators, right? I mean look, we just got out from under the thumb of a “president” who “governed” by the motto of enriching your friends and punishing your enemies. That’s a bad way to be, and I don’t want that model to be emulated. All things being equal, the state of Texas has a good case, as one of several strong competitors, for this new facility. But all things are not equal, we don’t operate in a vacuum, and it grinds my gears more than a little to see this kind of “bipartisanship” from the likes of Cornyn when it’s over a prize he’s vying for, and never anything else. The list of grievances goes way beyond legal challenges to the ACA and other Biden initiatives – you know, abortion and voting rights and library books and “don’t say gay” and so on and so forth. How many potential ARPA-H employees do you think would reject out of hand right now the opportunity to work there if it meant having to live here? Maybe if Cornyn and his co-conspirators did a little work to make the state a better place, and maybe if they spent less time wrecking the country for the rest of us, I’d feel unconflicted about rooting for us to get this gem. Not right now, not as things stand, no way. I hate that I feel this way but here we are. You can learn more about ARPA-H here if you want.

Texas sues to stop the end of Title 42

Apr 25th, 2022

by Charles Kuffner.

1 comment

Just another day at the office of destruction for Ken Paxton.

Best mugshot ever

Texas Attorney General Ken Paxton filed a lawsuit against the Biden administration on Friday to halt the Centers for Disease Control and Prevention from lifting Title 42, a pandemic-era health order used by federal immigration officials to expel migrants, including asylum-seekers, at the U.S.-Mexico border.

Title 42, which was enacted in March 2020 by the Trump administration, has been used 1.7 million times to expel migrants. Many of them have been removed multiple times after making repeated attempts to enter the U.S.

The CDC has the authority to enact orders like Title 42 under the 1944 Public Health Service Act, which gives federal officials the authority to stop the entry of people and products into the U.S. to limit the spread of communicable diseases. Part of the reason the agency is planning to lift the order soon is that COVID-19 cases have been decreasing and vaccinations have become widely available. The order is set to expire on May 23.

Paxton’s lawsuit argues that the Biden administration didn’t follow the administrative procedure laws needed to halt Title 42. The suit adds that if the Biden administration follows through with lifting the order, Texas will have to pay for social services for the migrants who enter the country.

“The Biden Administration’s disastrous open border policies and its confusing and haphazard COVID-19 response have combined to create a humanitarian and public safety crisis on our southern border,” the lawsuit says, which was filed in the Southern District of Texas in Victoria.

U.S. Health and Human Services Secretary Xavier Becerra, who is named as a defendant in the lawsuit, said on Thursday during a virtual event with the Council on Foreign Relations that health orders are not immigration policies.

“You don’t use a health law to deal with a migration challenge. You use migration laws to deal with migration challenges. You can’t use the cover of health to try to deal with a migration challenge,” he said.

[…]

The state has filed at least 20 other lawsuits in Texas-based federal courts, most of them led by Paxton, against the Biden administration over everything from federal mask mandates to halting the long-disputed Keystone XL pipeline. Judges appointed by former President Donald Trump have heard 16 of the cases and ruled in favor of Texas in seven. The other nine are pending, as of last month.

A majority of these lawsuits have been filed in courts in which the judge was appointed by Trump.

I mean, we could just wait until the combination of Democratic cold feet and empty both-siderism appeals forces Biden to back off anyway, but Paxton has never been one to wait for things to happen when he can find a friendly Trump judge to make them happen for him. Looks like I picked a bad day to quit sniffing glue. The Chron has more.

Texas sues to keep federal funds that would be denied for bullying trans kids

Mar 13th, 2022

by Charles Kuffner.

Comments are off for this post

The utter gall, it’s breathtaking.

Texas is worried it could lose over a billion dollars in federal funding over Gov. Greg Abbott’s directive requiring medical professionals to report transgender children receiving gender-affirming health care as potential child abuse.

Texas Attorney General Ken Paxton amended an existing lawsuit suing the Biden administration Wednesday, attempting to void guidance issued by the U.S. Health and Human Services on March 2 that said restricting someone’s ability to receive medical care solely on the basis of their sex assigned at birth or gender identity is likely a violation of the Affordable Care Act for federally funded entities. That federal guidance came in response to Abbott’s directive issued late last month to treat certain medical treatments for trans children as possible crimes to be investigated by the Department of Family and Protective Services.

The federal guidance stated that health care providers do not need to disclose private patient information regarding gender-affirming care and that it is illegal to deny health care based on gender identity.

Paxton, in the lawsuit, said that guidance is based on “erroneous interpretation of sex discrimination.” The lawsuit says Texas does not aim to deny health care based on gender identity. Instead, the state argues its investigations disregard gender entirely, barring all children from “unnecessary medical interventions.”

In 2020, $1.36 billion in federal funds went to Texas’ Department of State Health Services, Paxton said in the lawsuit. More than $26 billion went to the State’s Health and Human Services Commission.

I noted the federal guidance in this post. The main thing you need to know at this point is this:

.
The lawsuit is being filed in Amarillo (500 miles from Austin). It’s at least the sixth time in < 14 months that Paxton had sued Biden *there* (the 20th time overall). Why Amarillo? Because he has a *95%* chance of drawing Trump-appointee Matthew Kacsmaryk as the district judge. — Steve Vladeck (@steve_vladeck) 5:11 PM – 9 March 2022

.
Of 20 suits filed by Texas in Texas district courts in the first 14 months of the Biden Administration:

0 were filed in Austin;

15 were filed in random divisions — in which a single judge hears every (or almost every) case;

16 assigned to judges appointed by President Trump.

— Steve Vladeck (@steve_vladeck) 6:33 PM – 9 March 2022

It’s not a guarantee that Paxton will get what he wants from his hand-picked judge. But there’s a reason he picked him, you know? Daily Kos has more.

Paxton appeals gender affirming care order

Mar 5th, 2022

by Charles Kuffner.

4 comments

Of course he did.

Attorney General Ken Paxton filed for an appeal Thursday after a state judge blocked Texas’ child protection agency from investigating the parents of a transgender teenager who received gender-affirming medical care.

District Judge Amy Clark Meachum had granted a temporary restraining order on Wednesday. It did not stop the agency from opening investigations into other families in similar situations.

Meachum was scheduled to consider issuing a statewide injunction blocking such investigations into all parents of trans children on March 11, but that hearing has been put on hold until an appeals court rules on Paxton’s request.

And U.S. Health and Human Services Secretary Xavier Becerra said his agency is looking into tools that would shield transgender Texans from the state’s attempts to hinder access to gender-affirming care.

“The Texas government’s attacks against transgender youth and those who love and care for them are discriminatory and unconscionable,” he said. “These actions are clearly dangerous to the health of transgender youth in Texas.”

[…]

Becerra released guidance Wednesday that says refusing health care because of gender identity is illegal and that health care providers are not required to disclose information regarding gender-affirming care.

President Joe Biden also released a statement Wednesday condemning Texas’ actions.

“This is government overreach at its worst,” Biden said in a statement. “Like so many anti-transgender attacks proliferating in states across the country, the Governor’s actions callously threaten to harm children and their families just to score political points. These actions are terrifying many families in Texas and beyond. And they must stop.”

See here for the background. This is primarily about preventing Judge Meachum from being able to issue a statewide injunction, since the hearing for that action is on hold pending the appeal. The Third Court is more likely than not to deny Paxton’s appeal, but then he’ll go to the Supreme Court, and who knows how long that could take. And delay is good enough for Paxton and Abbott and their wicked aims.

Texas Children’s Hospital has “paused” hormone-related prescription therapies for gender-affirming care in response to the controversial directive from state leaders to investigate medical treatments for transgender youth as child abuse, according to a statement from the hospital.

“The mission of Texas Children’s Hospital is to create a healthier future for all children, including transgender children, within the bounds of the law,” the statement reads. “After assessing the Attorney General’s and Governor’s actions, Texas Children’s Hospital paused hormone-related prescription therapies for gender-affirming services. This step was taken to safeguard our healthcare professionals and impacted families from potential criminal legal ramifications.”

[…]

Lou Weaver, a transgender man and community advocate for transgender children and adults, said very few facilities offer gender-affirming care for children, and Texas Children’s is among the biggest programs in Texas that offered it.

“This is a truly frightening time for trans youth and their parents and guardians,” he said. “The doors to life-saving health care are literally being shut in their faces.”

UT Southwestern’s children’s hospital in Dallas shut down services for new patients at the end of the last legislative session due to political pressure, Weaver said.

I can’t blame Texas Children’s for not wanting to risk the legal exposure, but this is truly harmful and there’s not a clear endpoint. That harm is also financial for the families involved. I don’t know what the feds can do, but they need to figure it out quickly.

And in what may be the most infuriating but least surprising part of this, the opinion Paxton issued was based on misreading studies and making false claims.

One researcher said Paxton distorted her work for political purposes and that she’s “mortified” her research was included in the opinion.

Alexandra Minna Stern, a professor of history at the University of Michigan, studies the history of forced sterilization in the United States. Paxton’s office drew a parallel between forced sterilization and gender affirmation surgeries for minors. “I’m adamantly opposed to this interpretation and it does not align with my research and the conclusions of my research,” she said.

“If they knew anything about my scholarship more generally, they would know that I am someone whose research demonstrates the harm of the very types of policies they’re trying to enact on marginalized people.”

[…]

In his opinion, Paxton cited the work of Dr. Cecilia Dhejne, a Stockholm-based researcher, to support the idea that gender-affirming health care could be harmful to transgender children.

Dhejne led a 2011 study that found that transgender people who have undergone gender-affirmation surgery have worse mental health outcomes than the general population. Dhejne did not respond to a request for comment. However, in the text of the 2011 study, Dhejne and her team caution specifically against using the study to conclude that gender-affirming surgery is problematic, noting that the study did not compare the mental health outcomes of people before and after gender-affirming surgery.

The study’s “results should not be interpreted such as sex reassignment per se increases morbidity and mortality. Things might have been even worse without sex reassignment,” the study says.

Dhejne and her colleagues wrote instead that the study shows a need for better support for transgender people after they undergo surgery.

Paxton also asserts that there has been a recent “spike” in minors receiving gender-affirming “procedures.” He cited the Society for Evidence Based Gender Medicine, an anti-trans advocacy group.

The link in Paxton’s citation leads to a graph showing an increase in youth referrals to the United Kingdom’s Gender Identity Development Service. That national clinic provides a range of care, including counseling; the number of clinic referrals is not necessarily the number of medical interventions like the legal opinion implies.

Similarly, Paxton’s opinion cited the World Professional Association for Transgender Health and said that transgender people should typically be adults before receiving the listed types of gender-affirming care.

In a statement to the Star-Telegram, WPATH said that Paxton applied the citation too broadly. While WPATH does state in its standards of care that genital surgery should typically wait until a transgender person reaches the age of majority, Paxton’s opinion applied that standard to less-invasive interventions, too, including puberty blockers.

“It’s disheartening to see the Texas Attorney General’s opinion referencing WPATH to bolster an overall argument completely at odds with WPATH guidance,” the organization said in a written statement. “The citation is accurate but does not apply here because the AG’s opinion is arguing against reversible blockers while the cited WPATH content relates to gender affirming surgery.”

There’s a lot more and you should read the rest, but you get the idea. Lying has never bothered Ken Paxton. It’s serving him pretty well right now. The Statesman has more.

More federal support for emergency contraception

Sep 25th, 2021

by Charles Kuffner.

2 comments

Good.

The federal government announced Friday it is providing additional funding to Austin nonprofit Every Body Texas to address a potential increase in clients’ need for emergency contraception and family planning services now that Texas prohibits abortions as early as six weeks into pregnancy.

Health and Human Services Secretary Xavier Becerra said in a release Friday that the Office for Population Affairs will award funding to the group, which is the statewide administrator of the federal Title X funding program, which provides family planning and reproductive health services to low-income patients.

Friday’s move comes as the Biden administration is challenging Texas’ near-total ban on abortion in court.

The federal government is also launching a new funding program that allows any entity across the country, regardless of if it receives Title X funding, to apply and receive additional money to provide reproductive and family planning services to patients impacted by Senate Bill 8.

There is $10 million available for these two programs, though it is unclear how much Every Body Texas is receiving directly. According to the federal government’s website, the grant application for the new program, called Funding to Address Dire Need for Family Planning Services, says they expect to award 10 grants between $150,000 and $1.5 million by the end of this year. The announcement said Every Body Texas must use the money provided by March 31.

[…]

Becerra also issued a memorandum detailing two federal statutes he says his department would enforce to provide protection for patients who may need an abortion and health care providers who assist pregnant patients in certain situations.

“Today we are making clear that doctors and hospitals have an obligation under federal law to make medical decisions regarding when it’s appropriate to treat their patients,” Becerra said in a release. “And we are telling doctors and others involved in the provision of abortion care, that we have your back.”

It was not immediately clear late Friday how Becerra’s memorandum would impact people’s ability to access an abortion in Texas or providers’ willingness to perform the procedure.

The two federal laws Becerra referred to include the Emergency Medical Treatment and Labor Act and the Church Amendments. The federal government issued a memorandum reminding health care providers that patients who appear in the emergency room must receive appropriate medical screening, stabilizing treatment and a transfer, in or out of state, regardless of state laws, including pregnant patients or patients experiencing a pregnancy loss.

Becerra said the federal government would impose civil monetary penalties against hospitals or physicians if they violate that law.

Second, the federal Office of Civil Rights released guidance about the Church Amendments, which prevent discrimination against health care personnell who object to performing an abortion because of their relgious beliefs. Those amendments also protect health care providers from discrimination if they do assist or perform a lawful abortion, such as an abortion where federal funds are used to end pregnancies that result from rape or incest or to save the life of the pregnant person.

See here for the full statement from HHS. This is the sort of thing that would have been good to do at any time, but these are not normal times, and it’s everyone’s job to fight back against SB8. I hope the commitment continues once we have a (hopefully positive) resolution to the litigation. The Chron has more.

The Fifth Circuit Obamacare hearing

Jul 10th, 2019

by Charles Kuffner.

5 comments

Remember, the Fifth Circuit is where hope goes to die. Adjust your expectations accordingly.

It’s constitutional – deal with it

On the left was Judge Carolyn Dineen King, an appointee of Jimmy Carter; on the right sat Judge Kurt Engelhardt, a nominee of Donald Trump, and in the center sat Judge Jennifer Walker Elrod, the George W. Bush appointee expected to represent the critical swing vote on a three-judge panel now charged with deciding the constitutionality of the Affordable Care Act.

It was that perhaps fitting seating arrangement that greeted attorneys for Texas on Tuesday afternoon, as the state and its allies asked this three-judge panel on the U.S. 5th Circuit Court of Appeals to strike down the sweeping health law known as “Obamacare,” a legal means to a political end that has eluded conservatives for the better part of a decade.

Texas won a major victory in its bid to end the law in December, when a federal district judge in North Texas sided with the state, declaring that the law is unconstitutional in its entirety after Congress in 2017 gutted one of its important provisions, a tax penalty for individuals who chose to remain uninsured. The U.S. Department of Justice, in a highly unusual move, has declined to defend the law.

A California-led coalition of blue states that has stepped in to oppose Texas in the lawsuit quibbles with that question of “severability,” arguing that even if one slice of the law must fall as unconstitutional, its other hundreds of provisions — including a host of popular patient protections — should stand. The question of how much of the law may rightly be salvaged was a focal point of court discussions on Tuesday.

Texas’ odds of total vindication remain in question after nearly two hours of questions before the three judges.

Most of the unusually-large courtroom audience of journalists and interested but unaffiliated attorneys focused on Elrod at the center. By far the most vocal judge of the three, Elrod probed both sides on the issue of standing — whether they have the right to participate in the lawsuit at all. And she seemed highly focused on her court’s options for ordering a remedy, seeming to weigh options for sending the case back to a lower court for further consideration.

Engelhardt, who is among the newest appointees to the court, was harsh and occasionally sarcastic, asking more questions of the blue state coalition than he did of the Texas-led team. He seemed skeptical of the standing of both the California-led coalition and the Democratic-majority U.S. House of Representatives, which intervened in the case although the Republican-majority U.S. Senate did not.

The Senate, Engelhardt remarked, “is sort of the 800 lb. gorilla that’s not in the room.”

King, meanwhile, did not speak at all.

See here and here for the background. The legal basis of this lawsuit is so ridiculous that anything short of tossing it and its lawyers out of court is insufficient, but given where we are I could find a way to live with the idea of sending it back to the idiot district court judge for reconsideration. I fear we’ll get some kind of split-the-baby decision that strikes down parts of the law but leaves some crippled skeleton of it intact, which dumbass pundits will then call a “moderate compromise”, in the same way that the midpoint between “I murder you and burn down your house” and “I leave you alone” is a moderate compromise. Not much to do at this point but wait and work your ass off voting these morons out in 2020. NBC News, CNN, Daily Kos, Mother Jones, and Think Progress have more.

The lawsuit to kill Obamacare has its hearing at the Fifth Circuit today

Jul 9th, 2019

by Charles Kuffner.

2 comments

Brace yourselves.

It’s constitutional – deal with it

Last year, after a federal judge in Texas declared the entirety of the Affordable Care Act unconstitutional, throwing into question millions of Americans’ health coverage, the state’s Republican leaders promised they would come up with a plan to replace it.

But on Tuesday, after a legislative session that seemed to have no room for issues other than property tax reform and school finance, Texas will ask a federal appeals court in New Orleans to end the law in its entirety — without offering a replacement plan.

The conservative crusade against portions of the act, known as Obamacare, has spanned a decade. But Texas’ latest lawsuit, filed in February 2018, became an existential threat to the law after U.S. District Judge Reed O’Connor ruled in December that it is unconstitutional in its entirety. At stake: the subsidized health coverage of roughly 1 million Texans, sweeping protections for patients with preexisting conditions, young adults staying on their parents’ insurance plans until age 26 and a host of low-cost benefits available to all people with health insurance, including those covered through their employers.

Texas already has the highest uninsured rate in the nation.

In a highly unusual — if not entirely surprising — move, the U.S. Department of Justice has declined to defend the federal law, leaving a California-led coalition of blue states to protect it. As the case proceeds, Obamacare has remained in place, and likely will until the litigation is finally resolved.

Attorneys for the state of Texas argue the health law cannot stand since the Republican-led Congress in 2017 zeroed out Obamacare’s individual mandate — a penalty imposed on people who chose to remain uninsured. Democrats had favored the penalty as a way to induce more people to purchase health insurance, with the goal of reaching near-universal coverage. Without it, Texas argues, the whole law must fall.

But the state’s Republican leaders have offered few ideas about what should replace Obamacare, a law that touches practically every aspect of health care regulations and includes several popular protections for patients. Gov. Greg Abbott — a vocal critic of the law — pledged in December that if the law remained struck down on appeal, “Texas will be ready with replacement health care insurance that includes coverage for pre-existing conditions.”

Since then, he’s been quiet on the issue, including during this year’s 140-day Texas legislative session. Abbott did not respond to questions for this story.

See here for the background. And of course Greg Abbott doesn’t have a single thing to say about reducing the extremely high uninsured rate in Texas. That’s because Abbott’s plan to reduce the uninsured in Texas, supported by Dan Patrick and Ken Paxton and the rest of the Republicans, is for more of them to die. Just as a reminder, Republicans have been in complete control of Texas government since 2003. Not once during that time have they taken any steps to improve access to health care in the state. Indeed, on multiple occasions, beginning in 2003 with the savage cuts to CHIP and continuing through their assault on women’s health via attacks on Planned Parenthood, they have time and time again make accessing health care harder. That’s what is at stake here. The only fix, regardless of the ruling in this case, is to vote them out. The WaPo, the Chron, and Think Progress have more.

Anti-Obamacare ruling appealed

Jan 6th, 2019

by Charles Kuffner.

Comments are off for this post

The big non-Mueller story to follow for 2019.

Best mugshot ever

The Democratic coalition of states battling Texas over the fate of the Affordable Care Act has formally begun the process of challenging a Dec. 14 decision ruling the law unconstitutional in its entirety.

California Attorney General Xavier Becerra, who’s leading the charge, filed a notice of appeal Thursday morning before the U.S. 5th Circuit Court of Appeals. The blue states will ask the federal appeals court to overturn last month’s ruling from U.S. District Judge Reed O’Connor, who declared that President Barack Obama’s signature health care law is unconstitutional after Congress in December 2017 gutted one of its major provisions, the individual mandate.

The notice of appeal marks the next stage of what is expected to be a long-running litigation process that could reach the U.S. Supreme Court. A Texas-led coalition of 20 states kicked the process off nearly a year ago by suing the federal government to kill the law; after the Justice Department sided partially with Texas, the California-led coalition of states stepped in to defend Obamacare in court.

“The wheels start turning as of now,” Becerra said on a press call Thursday morning.

See here and here for the background. Every legal scholar with a shred of integrity has denounced this ruling as ridiculous, but we all know that what matters is what five members of SCOTUS think is legal. One story I read about this noted that the coalition of states defending Obamacare picked up an ally after the 2018 election, the new Attorney General of Colorado. One can only wonder what might be happening today if we could have added a new Attorney General of Texas to this. Alas, we’ll have to file that under What Might Have Been.

Video fraudsters in trouble again

Apr 1st, 2017

by Charles Kuffner.

1 comment

In California this time.

Right there with them

California prosecutors on Tuesday charged two anti-abortion activists who made undercover videos of themselves trying to buy fetal tissue from Planned Parenthood with 15 felonies, saying they invaded the privacy of medical providers by filming without consent.

The charges against David Daleiden and Sandra Merritt of the Center for Medical Progress come eight months after similar charges were dropped in Texas.

State Attorney General Xavier Becerra, a longtime Congressional Democrat who took over the investigation in January, said in a statement that the state “will not tolerate the criminal recording of conversations.”

Prosecutors say Daleiden, of Davis, California, and Merritt, of San Jose, filmed 14 people without permission between October 2013 and July 2015 in Los Angeles, San Francisco and El Dorado counties. One felony count was filed for each person. The 15th was for criminal conspiracy to invade privacy.

[…]

Daleiden and Merritt had previously been indicted in Texas on similar charges in January of 2016, but all of the charges were eventually dropped by July as prosecutors said a grand jury had overstepped its authority. The grand jury had originally been convened to investigate Planned Parenthood, but after finding no wrongdoing turned around and indicted Daleiden and Merritt instead.

The California charges stem from recording people without their knowledge, which is a crime in some states but not in others. The charges here were the result of creating phony drivers licenses to back up the aliases they used. The circumstances under which the Harris County indictments were dropped remain somewhat fishy, but I suppose it was just a matter of time before these two clowns got into trouble again. It’s what happens when everything you do is based on a lie. Think Progress, the Current, and Slate’s Mark Joseph Stern, who has a thorough and nuanced look at the California law in question, have more.

California is the new Texas

Dec 7th, 2016

by Charles Kuffner.

2 comments

Or will be, as far as litigating against the federal government goes.

Xavier Becerra

Gov. Jerry Brown has tabbed Rep. Xavier Becerra to serve as California’s interim attorney general, selecting the Los Angeles Democrat to fill a vacancy opened by the imminent departure of outgoing Attorney General Kamala Harris to the U.S. Senate.

Assuming he wins confirmation by the Legislature – a strong possibility, given the 12-term Democrat’s role as a mainstay of Democratic and Los Angeles politics – Becerra would serve as California’s top law enforcement official through 2018, with an opportunity to serve for another eight years if he runs for the office. He would be California’s first Latino attorney general.

The election of Donald Trump as president has alarmed California Democrats and thrown into question the state’s liberal stances on issues like climate change and immigration. Brown’s choice of a liberal stalwart like Becerra reaffirmed the state’s future role as a pocket of resistance.

“Xavier has been an outstanding public servant – in the State Legislature, the U.S. Congress and as a deputy attorney general,” Brown said in an emailed statement. “I’m confident he will be a champion for all Californians and help our state aggressively combat climate change.”

Referring to himself as “the son of immigrants” who is motivated to “fight for working families like the one I grew up in,” Becerra said in a statement that he had accepted Brown’s offer and summarized his liberal bona fides.

“I have been part of some of the greatest debates confronting our nation, from opposing the Iraq War, to fighting to help Americans recover from the Great Recession, to launching the bipartisan immigration talks and helping write our nation’s health security law,” Becerra said, adding that “California right now is ahead of the country when it comes to clean energy, common sense treatment of immigrants, real health security and so much more.”

[…]

In a conference call with reporters, Becerra said he would be “vigorous in defense of what we’ve done” to expand clean energy, protect parts of the federal health care law that Republicans seek to dismantle and preserve efforts toward “criminal justice reform” that seek to protect “young men of color.”

“We have policies in place that probably won’t pass at the federal level for another five, 10, 15 years,” Becerra said. “If you want to take on a forward-leaning state that is prepared to defend its rights and interests, then come at us.”

And in the face of Trump’s vow to deport millions of immigrants with criminal records, Becerra appeared to back California’s efforts to prevent removal of unauthorized immigrants who pose no threat to public safety.

“No one who goes to a grocery store to shop should believe the state of California is going to do anything to keep them from going home to see their kids if they’re just being regular, hardworking individuals,” Becerra said. “You’re talking to the son of immigrants, and I’m going to do everything I can to give that child of immigrant parents every chance I had.”

Hire some good litigators, that’s my advice. I’ve said before, I don’t care for having district court judges provide another veto on the federal government. It just doesn’t strike me as a good way to run a government. That said, if this is how the game is played these days, I see no reason to unilaterally disarm. I look forward to the howls of protest from the likes of Ted Cruz when state or even local action overrules a federal mandate. I can’t wait to hear what the principle is for that. Daily Kos has more.

Castro back on as VP possibility

Jun 24th, 2016

by Charles Kuffner.

4 comments

I have three things to say about this.

Mayor Julian Castro

Housing and Urban Development Secretary Julián Castro is on the shortlist of potential running mates for Hillary Clinton, and has been asked by her campaign to provide personal information, San Antonio Express-News sources have confirmed.

Citing Democratic sources, reports said that in addition to Castro, a pared-down list the Clinton campaign is considering includes Virginia Sen. Tim Kaine and Massachusetts Sen. Elizabeth Warren and that others also may yet be in the running.

[…]

Campaign insiders at the Bipartisan Policy Center recommended this spring that because of the high stakes, presidential nominees devote at least two months vetting potential running mates, which includes digging into their finances, their family history and even their social media posts.

But Clinton, who has been a fixture in Democratic politics for more than two decades, apparently feels secure in a more compressed time frame. She’s not expected to announce her choice until — or just before — Democrats gather in Philadelphia on July 25 for their nominating convention.

Castro’s chances were widely thought to have dimmed with the rise of presumptive GOP nominee Donald Trump, whose incendiary remarks about people of Mexican heritage had functioned to energize Latino voters.

Castro, who would be the first Latino on a major party ticket, may yet fall short given his lack of experience.

The Associated Press reported that supporters of Castro, 41, said he would bring other advantages, among them his relative youth alongside Clinton, 68, and some of the other potential running mates. In her challenge from Vermont Sen. Bernie Sanders, Clinton struggled to attract young voters to her cause.

U.S. Rep. Xavier Becerra of California and Labor Secretary Thomas Perez also have been mentioned on a list of Hispanic candidates who could be appealing to Clinton.

Warren, who turns 67 on June 22, is a favorite of many Sanders backers for her outspoken liberal views, particularly when it comes to regulating Wall Street. She and Clinton have not been close, but the two met recently in Washington after Clinton’s victory over Sanders became clear.

Kaine, 58, who’s known as a centrist in the party, had emerged as a favorite of some party insiders because he might appeal to independents and address another of Clinton’s weaknesses — her problem with Anglo male voters.

1. It was just a month ago that Castro himself was saying that he was not being vetted for the VP job. Things can change in a hurry, so perhaps one should not take any single story about the VP selection process with too much seriousness.

2. I agree with Brian Beutler that Hillary Clinton has the luxury of being able to pick any reasonable candidate as her VP, and I agree with Matt Yglesias that her first priority should be to pick someone whom she would like as her successor in 2024. Beyond that, I don’t really have an opinion on whom she should pick.

3. What effect might Castro have on Democratic prospects in Texas? I don’t know, but a lot of people think he would be good for Dems here. I tend to think so, too, but you know how we could try to answer that question? With some polling, of course. We finally have a poll now, but it doesn’t address that question. Perhaps another poll, assuming it happens before any VP announcements are made, could include some questions pairing Clinton with this VP hopeful or that one to see if any of them make a difference one way or another. My guess is that any such effect would be modest, but why guess? Give us a poll! Campos and the Current have more.

UPDATE: One national poll suggests Castro doesn’t move the needle much if at all in either direction. That’s not the same as seeing if he has an effect in Texas, but it is a data point.

Xavier Becerra

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