abortion

One woman had to carry her baby, missing much of her skull, for months knowing she’d bury her daughter soon after she was born. Another started mirroring the life-threatening symptoms that her baby was displaying while in the womb. An OB-GYN found herself secretly traveling to Colorado to abort her wanted pregnancy, marred by the diagnosis of a fatal fetal anomaly.

All of the women were told they could not end their pregnancies in Texas, a state that has enacted some of the nation’s most restrictive abortion laws.

Now, they’re asking a Texas court to put an emergency hold on some abortion restrictions, joining a lawsuit launched earlier this year by five other women who were denied abortions in the state, despite pregnancies they say endangered their health or lives.

More than a dozen Texas women in total have joined the Center for Reproductive Rights’ lawsuit against the state’s law, which prohibits abortions unless a mother’s life is at risk — an exception that is not clearly defined. Texas doctors who perform abortions risk life in prison and fines of up to $100,000, leaving many women with providers who are unwilling to even discuss terminating a pregnancy.

“Our hope is that it will allow physicians at least a little more comfort when it comes to patients in obstetrical emergencies who really need an abortion where it’s going to effect their health, fertility or life going forward,” Molly Duane, the lead attorney on the case, told The Associated Press. “Almost all of the plaintiffs in the lawsuit tell similar stories about their doctors saying, if not for this law, I’d give you an abortion right now.”

The lawsuit serves as a nationwide model for abortion rights advocates to challenge strict new abortion laws states that have rolled out since the Supreme Court overturned Roe v. Wade last year. Sixteen states, including Texas, do not allow abortions when a fatal fetal anomaly is detected while six do not allow exceptions for the mother’s health, according to an analysis by KFF, a health research organization.

Duane said the Center for Reproductive Rights is looking at filing similar lawsuits in other states, noting that they’ve heard from women across the country. Roughly 25 Texas women have contacted the organization about their own experiences since the initial lawsuit was filed in March.

See here and here for more on the original lawsuit. A copy of the amended suit, which will be heard in Travis County, is here. The story has details about several of the new plaintiffs – as we have seen, too many times before, these were wanted pregnancies that ran into deadly complications, and the effect on these women because of the strict restrictions on what doctors can do now is harrowing – with more about them here. I haven’t seen any further coverage of this yet, which annoys me. There was a brief moment, in the 2022 campaign and at the beginning of the legislative session, when there were a few words spoken by Republicans about maybe softening the super-strict bans just a little, to include rape and incest exceptions and clarify the “life/health of the mother” situation. That got shot down by the usual suspects, and instead we get some more anti-abortion crap, this time being slipped into a bill to extend Medicaid coverage to 12 months for new mothers. So yeah, I’m very invested in this litigation. The press release from the Center for Reproductive Rights is here, and they have more in their Twitter thread.

The 2023 Kinder Houston Area Survey

May 20th, 2023

by Charles Kuffner.

Comments are off for this post

One of the great things about Houston.

Housing costs and the economy topped Houstonians’ concerns this year in the 42nd annual Kinder Houston Area Survey, which also showed a coalescing desire to close the income gap as residents reported widening disparities in their financial outlooks.

While some issues remain nationally divisive, that isn’t always the case in Houston. Ruth López Turley, director of Rice University’s Kinder Institute for Urban Research, said she is hopeful as locals have increasingly reached consensus on a variety of economic and social issues.

“On the one hand, the inequalities are persistent. On the other hand, I find it very hopeful that now a majority, a large majority, want that to change,” López Turley said. “We haven’t seen any action taken, really, but the fact that more people want to see action taken, that’s the first step.”

[…]

The Houston area is also becoming more socially liberal, with younger population driving the direction of public opinion, researchers said.

The number of people who support the right to abortion has remained largely unchanged over the years – 56 percent in 1988 and 59 percent in 2023 – but beliefs on morality are changing. Houstonians felt abortion was “morally wrong” through the 2010s, but the answer split evenly in 2021.

This year, 58 percent said abortion was morally right and 42 percent said it was morally wrong, with older people were more likely to feel it was wrong.

Around 90 percent of the panel’s respondents supported abortion in cases where woman’s health at risk, and 80 percent supported the right to abortion when a serious birth defect is detected, according to the survey results.

People also support gun rights with restrictions – 76 percent said it is very important or somewhat important to protect the Second Amendment, but more than 81 percent favored federal laws requiring handgun registration. Another 93 percent supported universal background checks regardless of where a firearm is purchased. And two-thirds said they find it “very important” to control gun ownership.

Houstonians who were surveyed also overwhelmingly support providing pathways toward legal citizenship for individuals living in the U.S. without documentation, at 80 percent. About 70 percent say immigrants strengthen American culture rather than threaten it, and the share reporting that immigrants contribute more to the economy than they take out has grown from 42 percent in 1994 to 71 percent in 2023.

There’s more, so read the rest of the story and read the survey itself. The Kinder Houston Area Survey is a huge asset to Houston and we should be really grateful to have it. The Press has more.

FDA set to approve over the counter birth control pill

May 12th, 2023

by Charles Kuffner.

3 comments

Good.

An influential advisory panel recommended that the Food and Drug Administration (FDA) approve an oral contraceptive pill for over-the-counter use without an age restriction.

While hormonal birth control is available without a prescription in many other countries, this medication, Opill, would be the first such option in the United States. The vote, conducted after a day-and-a-half discussion this week, is a significant step toward making birth control more widely available now that abortion is not federally protected.

The FDA is not obligated to accept the panel’s recommendation but is likely to do so, with a decision expected this summer. The vote means that hormonal birth control could be available without a prescription later this year.

In their review of the manufacturer’s data, FDA scientists surfaced concerns about whether people would know how to properly use the medication without the advice of a physician, highlighting in particular whether people would understand how often to take the medication, the proper way to consume it, the correct dosing, and what medical conditions might render them ineligible for the drug.

Opill, which is made of progestin, is not recommended for people who have had breast cancer. Some FDA scientists also worried that the drug may be less effective for people with higher body weights, who were not considered to the same extent when the drug was first approved in 1973.

But in their discussion this week, the group of scientists advising the FDA — including doctors and biostatisticians — argued that the value of making a safe and effective oral contraceptive more readily available outweighed those concerns. Making the pill an option without a prescription could make it easier for people who otherwise don’t have access to hormonal birth control: minors who are unable to to involve their parents, people who don’t have a regular health care provider, or those whose nearby clinics and health centers don’t provide oral contraceptives.

The over-the-counter birth control pill — which should be taken at the same time every day — is also more effective than other non-prescription methods, such as condoms or diaphragms.

“It’s really an access issue,” said Dr. Katalin Roth, a professor of medicine at George Washington University. “Making it over the counter is the right thing for women.”

There is another factor in all this, one that went unspoken in the official proceedings.

However, there’s another incredibly salient factor that was largely absent from the presentations: the current U.S. abortion landscape.

Per the Guttmacher Institute, 26 states have abortion schemes categorized as “restrictive,” “very restrictive” or “most restrictive.” In many of those states, abortions are virtually inaccessible.

Such a climate makes the accessibility of contraception a critical concern, particularly for girls and women who live in states with the most restrictive regimes. As it is, contraception has been linked to expanded educational opportunities and higher income for women and better outcomes for children; a 2012 National Bureau of Economic Research paper found that one-third of the wage gains women have made since the 1960s stem from the availability of birth control.

Though separate processes, targeting contraception has long been part of the anti-abortion movement, even if its activists sometimes muddied their stance so as not to alienate supporters.

“When emergency contraception first came about, some pharmacists refused to fill prescriptions and said that emergency contraception is an abortifacient, which it isn’t,” Carole Joffe, a sociology professor at the University of California, Davis’ center for global reproductive health, told TPM. “Then it escalates — some were at one point refusing to fill prescriptions for regular birth control.”

Immediately after the anti-abortion movement had its historic victory in the Supreme Court overturning Roe v. Wade, right-wing lawmakers started eyeing intrauterine devices and Plan B, also known as the morning-after pill, to restrict next.

“Going after contraception is such an overreach — but that’s what social movements do,” Joffe added. “When they win one battle, they think they can win more.”

There is of course opposition to this proposal.

Major medical groups, such as the American Medical Association and the American College of Obstetricians and Gynecologists, are backing the request.

But groups like the Catholic Medical Association are opposed, and not just on religious grounds.

In addition to questioning the safety of making a birth control available without a prescription, that group argues that easier access would help sex traffickers and that skipping the requirement to see a doctor would harm women’s health in other ways.

“It eliminates the need to see a physician for young ladies to see a physician for the prescription,” says Dr. Timothy Millea, who head’s the association’s health care policy committee. “That will eliminate the screenings for ovarian cancer, for cervical cancer, for sexually transmitted infections.”

An FDA assessment also raised questions about taking a health professional out the equation. FDA scientists questioned whether women would take the pill every day at the same time, as they’re supposed to, and whether women who shouldn’t take the pill because of certain health problems would know that.

But proponents dismiss those concerns, arguing there’s plenty of evidence that women can easily handle it. Pills are available without a prescription in more than 100 other countries.

“We think the evidence is quite clear,” says Dr. Jack Resneck Jr., the AMA’s president. “First of all, oral contraceptives have been used safely by millions of women in the United States and around the world since the 1960s.”

Moreover, while regular exams are important, “they’re not necessary prior to initiating or refiling an oral contraceptive,” Resneck says.

I don’t have any commentary here, just adding this to the Things To Watch in the coming weeks, as the FDA preps its final decision. We’re past the point where the Lege can do anything ridiculous, but that doesn’t mean there won’t be other opportunities. The forced birth zealots don’t like contraception either, and they’re not going to go away.

Slaton resigns

May 9th, 2023

by Charles Kuffner.

4 comments

Good riddance.

Rep. Bryan Slaton

Rep. Bryan Slaton resigned from the Texas House on Monday after an investigation determined that he had an inappropriate sexual relationship with a 19-year-old woman on his staff, providing her with enough alcohol before their encounter that she felt dizzy and had double vision.

Pressure had mounted on the Royse City Republican to resign since Saturday, when the House General Investigative Committee released a 16-page report finding Slaton had engaged in inappropriate sexual conduct with his aide. The committee of three Republicans and two Democrats recommended that Slaton be the first state representative expelled from the body since 1927.

[…]

Slaton, 45 and married, was among the most socially conservative lawmakers in the chamber and had been one of this session’s loudest voices for cracking down on drag shows and decrying drag artists as “groomers” who want to sexualize kids.

The committee report said Slaton had invited the 19-year-old woman to his Austin apartment late March 31 and gave her a large cup of rum and coke, then refilled it twice — rendering her unable to “effectively consent to intercourse and could not indicate whether it was welcome or unwelcome.”

In other questionable actions, Slaton also provided alcohol to the aide and another woman under the age of 21 on several occasions, the report said.

The report also alleged that after Slaton and the woman had unprotected sex in the early hours of April 1, Slaton drove her home, and she later went to a drugstore to purchase Plan B medication to prevent a pregnancy. Slaton, a staunch abortion opponent, later tried to intimidate the woman and her friends into not speaking about the incident, the report said.

See here for the previous update. I skipped a bunch of paragraphs about Slaton’s buddies in the Republican Party finally turning on him, because I absolutely do not have to hand it to them. I’ll be honest, I wanted to see the House have the expulsion vote, in part because he didn’t deserve to leave on his own terms, and in part out of morbid curiosity to see if anyone would still side with him, even as the worst people in the state other than himself had already told him to get lost.

I urge you to read the committee’s report about Slaton’s extremely sleazy and gross actions in this matter if you haven’t already. That highlighted bit about the young woman in question buying a dose of Plan B was the item that made me the angriest when I read it. Because, of course, while Plan B is still legal in Texas – indeed, it’s Greg Abbott’s advised treatment for rape victims, so that he and his fellow forced birthers don’t need to pass a rape exception to our extreme anti-abortion law – there were bills filed in this session that would greatly limit access to Plan B, or even possibly make its purchase and use a felony on par with murder. I’ll give you three guesses which legislator filed that latter bill. By my count, he filed or sponsored at least four even more anti-abortion bills this session, because that’s the kind of moral exemplar Bryan Slaton is. I’m not the praying type, but if I were I’d definitely be beseeching a higher authority to spare this girl the indignity of being impregnated by this horrible man.

Anyway. He’s gone, and as I said, good riddance. One asshole less in the Lege, which is always a fine thing. He likely won’t be replaced until November – if for some godawful reason we have a special session Abbott can call for an expedited election to fill his seat. If we’re very lucky, whoever does replace him will be slightly less of an asshole. I’m not terribly optimistic.

UPDATE: From the DMN:

In a letter to Gov. Greg Abbott and chief House clerk Stephen Brown, Slaton said his resignation was effective immediately. Slaton did not mention the House General Investigating Committee’s Saturday report recommending his expulsion.

“I look forward to spending more time with my young family, and will continue to find ways to serve my community and all citizens across our great state,” he wrote.

Slaton, R-Royse City, said “it has been an honor” to represent District 2, where he won elections in 2020 and last year.

[…]

On Monday, Murr said he still planned on Tuesday to ask the vote to expel Slaton.

“Under Texas law he is considered to be an officer of this state until a successor is elected and he takes the oath of office,” Murr said in a social media post.

Under the state Constitution, lawmakers may be expelled for “disorderly conduct.” Each chamber is left to define what constitutes such conduct.

The General Investigating Committee began receiving complaints about Slaton’s behavior April 5, the report notes.

Former Harris County District Judge Catherine Evans, now a lawyer in Houston, was retained to investigate the allegations against Slaton. Evans provided the panel with the report early last week.

Slaton, who appeared before the committee for 90 minutes on Thursday, has expressed no regret and shown no remorse for his conduct, a “fact” the report called “egregious.” After meeting with the committee, he did not answer reporters’ questions about his presence before the panel.

Glad to hear the expulsion vote will still be held, even if it’s mostly pro forma at this point. And again, I cannot emphasize enough what an asshole Bryan Slaton is.

A tale of two Propositions A

May 8th, 2023

by Charles Kuffner.

1 comment

I usually write my own sentence or two to introduce the article I’m linking to and commenting on, but honestly I can’t do any better than the lede of this story.

Proposition A, the wide-ranging police reform measure also known as the Justice Charter, went down in flames Saturday night, with a wide margin of voters casting a ballot against the measure.

Opponents began celebrating just minutes after early vote totals posted.

“The defeat of Prop A is a victory for local families, for local businesses and our quality of life,” wrote San Antonio SAFE PAC Co-Chairs Eddie Aldrete and April Ancira in a statement. “San Antonio is one of America’s unique, great cities and today our citizens professed with a loud and unequivocally clear voice we want to keep it that way.”

Ananda Tomas, executive director of ACT 4 SA, which gathered more than 38,000 signatures to get the measure on the ballot, said Saturday night she thought it would be a tighter contest — early vote totals came in with more than 75% against Prop A.

With all 251 vote centers reporting, election day voters had reduced that lead to just under 72%.

But the “grassroots effort” was no match for the police union’s money and political reach, Tomas said. “It’s just big, monied interest and misinformation that’s out there.”

The Current adds on.

In addition to decriminalizing abortion and low-level pot possession, Prop A would have codified cite-and-release for Class C misdemeanors such as petty shoplifting and vandalism. Additionally, it would have codified SAPD’s current ban on police choke holds and no-knock warrants.

Prop A’s backers were outspent 10-to-one by opponents including the powerful San Antonio Police Officers Association and deep-pocketed business interests.

Indeed, Prop A’s fatal flaw may have come down to the difficulty explaining exactly what it would do amid a barrage of ads depicting it as a step toward rampant crime and violence in the streets.

“We still have to do a lot of public education. We’ve been doing it for several years and we’re going to continue,” Ananda Tomas, executive director of police reform group Act 4 SA, told reporters at the Prop A watch party. “We know when we’re at the doors and we break all of these things down, that folks are with us.

High-profile leaders including San Antonio Mayor Ron Nirenberg and most of city council also declined to back Prop A. Proponents accused the mayor of backpeddling on his prior support of cite-and-release.

“The challenge with Proposition A is that I think it mischaracterizes what cite-and-release was about,” Nirenberg previously told the Current. “Cite and release has always had officer discretion. Prop A effectively removes officer discretion, and again, theft and property damage are not victimless crimes.”

Tomas said she was disappointed with the the mayor’s decision to campaign against Prop A. However, she said that she and fellow progressives aren’t giving up in their fight for criminal justice reform.

I had mostly described San Antonio’s Prop A as being about marijuana decriminalization, but it was a lot more than that, I think to its detriment. I get the appeal of trying to address these things systematically, but this is one of the downsides of that approach (see also: Obamacare and Build Back Better), in which the more controversial and less popular aspects of the package are weaponized against it. It also may be the case that the electorally successful marijuana reform referenda from 2022 benefitted from being more under the radar, while this effort was regularly topline news. I don’t think most of the individual components of Prop A are any less popular on their own – marijuana decriminalization, not pursuing abortion-related prosecutions, banning choke holds, that sort of thing. It’s just that proponents of them will need to strategize further in advancing them. (How many of them will be to a city or county’s discretion following this legislative session is another matter.)

Meanwhile, it was a different story in Austin.

The May 6 election made it clear: Austin is ready to dramatically expand civilian oversight of police.

With about 78,000 voters turning out for the May 6 election on two police oversight propositions with the same name (Austin Police Oversight Act), the progressive Prop A got approval from a resounding 70% of voters, per unofficial voting numbers. Prop B, which copy-pasted language from Prop A and then edited it to reduce oversight powers, received support from only 20% of voters.

As we observed from early voting numbers, turnout overall was not spectacular. In 2021, when a GOP-aligned PAC Save Austin Now was able to get a measure on the ballot to increase police staffing, roughly twice as many people cast a vote (and the police association-backed measure lost). A little more than 10% of Austin voters showed up this election, which is not atypical for a May election without high profile offices on the ballot.

Still, the passage of Prop A – which seeks to grant the Office of Police Oversight a whole lot of freedoms, including greater access to Austin Police Department’s internal affairs investigations – marks a huge stride for the city, and possibly the beginning of litigation over the legality of some of the measure’s language. If a court does eventually throw certain elements of the measure out, the undisputed parts of the ordinance will still stand.

I was vaguely aware of Austin’s referenda, but saw much less news of them than I did the props in San Antonio, for whatever that’s worth. I’m not saying this is the only way forward – indeed, as I have said before, what we really need is a better state government, because even this path forward is increasingly narrow and hostile – but what was tried in San Antonio didn’t work, and seem unlikely to be viable elsewhere. Let’s learn what we can from what happened and make the best of it going forward.

An example of how a pro-abortion rights campaign could go

May 7th, 2023

by Charles Kuffner.

Comments are off for this post

This was from last week, and I’ve been thinking about it since.

In testimony before the Senate Judiciary Committee on Wednesday, one of the five women suing Texas for abortion access blamed the state’s Republican senators for her near-death experience when she was denied reproductive care in the state.

“I nearly died on their watch,” Amanda Zurawski said, naming U.S. Sens. John Cornyn and Ted Cruz, who both sit on the committee. “And furthermore, as a result of what happened to me, I may have been robbed of the opportunity to have children in the future — and it’s because of the policies they support.”

[…]

The state’s ban allows for exceptions only when there is “substantial” risk to a mother or if a fetus has a fatal diagnosis. But many doctors and hospitals have been fearful of intervening even when there is a clear danger because of the stiff penalties for anyone who violates the ban, including potential prison sentences of up to 99 years, tens of thousands of dollars in fines and the loss of medical licenses.

Zurawski was 17 weeks pregnant when she was diagnosed with a condition called cervical insufficiency, which had caused her to dilate too soon for her baby to survive. The morning after her water broke, Zurawski still hadn’t gone into labor, but doctors in the emergency room told her there was nothing they could do for her because the baby still had a heartbeat.

Zurawksi later developed sepsis, a life-threatening condition, and the hospital agreed to perform the abortion. After delivering and losing her daughter, Willow, Zurawski developed a secondary infection and was entered into the intensive care unit, where she spent three days.

Zurawsi testified that she is still dealing with “paralyzing trauma” from the “preventable harm” she suffered, which she said “has already made it harder for me to get pregnant again.”

“I may have been one of the first who was affected by the overturning of Roe in Texas, but I certainly will not be the last,” she said.

“You have the power to fix this,” she said, addressing the panel of senators. “You owe it to me and to Willow and to every other person who may become pregnant in this country to protect our right to safe and accessible health care, emergency or no emergency. Your job is to protect the lives of the people who elected you, not endanger them.”

See here and here for more on the lawsuit, and here and here for more about the polling and politics stuff. Ms. Zurawski is as sympathetic and compelling a spokesperson as one could want. This was a wanted pregnancy that was derailed by medical issues – all of which happened after 15 weeks, by the way – and she suffered greatly and nearly died because doctors couldn’t treat her due to Texas’ laws; she may now be unable to get pregnant again as a result. You could argue, as the forced birthers are already doing, that the fault lies with the doctors, who just misinterpreted the laws. But when it’s your profession and a 99-year prison sentence on the line, no one is going to put themselves out on a limb. This is, again, the intent of the law, as embodied by the likes of Sen. Angela Paxton and her opposition to any exceptions for the life of the mother.

The bottom line here is that I believe that a vast majority of Texans would agree with the position that Ms. Zurawski should not have had to go through all that, she should have been able to get the care that she needed, which in this case was an abortion. There was a clear medical need, any reasonable person would have expected to receive it, and if the laws are an obstacle to her and her doctors then those laws should be changed. That’s what her lawsuit is about. If there were a way for there to be a statewide ballot proposition for this specific issue, I’d expect it to pass.

But just adding in an explicit “health of the mother” exception to our laws as they exist now, while being popular and clearly needed, would still leave Texas in a far more restricted place for abortion access than it was even two years ago. Note that we are only talking “health of the mother” exceptions; rape and incest would still not be an acceptable reason for an abortion. And, not to put too fine a point on it, there would still be absolutely no “abortion because it’s my choice and my body and this is what I want” allowance. No Democrat running against Ted Cruz or any other forced-birth Republican in 2024 is going to stop at this point in their abortion rights advocacy. They don’t believe in anything so limited, and their existing supporters would be rightly upset at such a change in their posture.

And so that’s the challenge. Plenty of people would support the Zurawski exception. Fewer, quite a bit fewer, would support – and more crucially, be willing to vote for politicians who support – the pre-Dobbs landscape. Note that Zurawski herself is not calling for just “health of the mother” exceptions – she wants “to protect our right to safe and accessible health care, emergency or no emergency”. How do we get the majority that is surely there for something narrow into a majority for something broader? Like I said, this is what we need to be working on. Daily Kos and Slate have 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.

One more thing about abortion and polling

May 4th, 2023

by Charles Kuffner.

3 comments

Just wanted to add one thing to my earlier post about abortion as a political/campaign issue in Texas in 2023-24. In addition to the question of support for or opposition to abortion, most polls also ask questions about what issues voters prioritize. Sometimes they give the respondents a list, sometimes they let the respondents volunteer their answers. You can see examples in the Texas Politics Project polls and in various national polls, among others. The idea here is to try to get a handle on the issues that are actually motivating people to vote, as well as understand which way they would go.

Generally speaking, abortion is not a top-cited issue in most polls. Even in 2022, even among Democrats and the voters Democrats were trying to reach, it wasn’t the top issue. Inflation, crime, the state of democracy, climate change, and abortion were among the top issues for Dems last year, while for Republicans it was inflation, crime, and immigration. There is of course a subset of voters for whom abortion as been The One Issue, but that’s a small group and they are the hardest of the hardcore forced-birth contingent.

Abortion is absolutely becoming a more salient issue for Democrats, where it fits into a panoply of related issues that we see as being genuinely threatened by radical far-right legislators and their enablers on the courts. Voting rights, democracy in general, LGBTQ+ rights, gun control, fights against book bans and “critical race theory” and “don’t say gay” laws and drag show bans and on and on, they’re all of a piece. Dems are increasingly (though still not entirely) unified on these issues, and they both poll better overall and tend to have appeal to a class of voter that used to be on the other team. There are still disagreements – there will always be disagreements – but the Bart Stupak contingent is now vanishingly small. I’d say a fair number of more recent converts, the post-2016 crowd in particular, which includes some of our more energetic activists, came on board in part over abortion rights and the fear of the Roe reversal that was to come.

What’s clear from the polling data we have is that support for abortion rights, even in a more-limited-than-we’d-like manner, significantly exceeds the vote share that pro-choice politicians get. Here in Texas, there are three issues on which public support is totally disconnected from legislative action: Expanded gambling, marijuana decriminalization, and abortion rights. The first two can largely be explained as “Dan Patrick opposes them”, but the third is entirely due to people who say they support abortion rights – again, even in the very limited “rape/incest/health of the mother” way – voting for Republican candidates that support making abortion 100% illegal.

How do we get these Republican voters who want to have at least some access to legal abortion in Texas to stop voting for forced-birth extremists? If I knew the answer to that, I’d be pelting Colin Allred and Roland Gutierrez with my resume to be their campaign manager. I can’t say with certainty that there’s a way to reach these people and change their minds, or at least their voting behavior, even in just one or two key races. But I believe there is, and I believe we can and must try to find it. I believe we did not try to take advantage of this change in the national mood last year – we did try to persuade people about the failures of the grid and our deadly gun laws, with which I have no quarrel other than they ultimately didn’t work – and we must try it next year. I believe we can learn from what activists did in states like Kansas and Michigan and Pennsylvania. I believe there is a risk both of going too far and pushing past the comfort levels of the “I support women who need abortions, but I’m icked out by the women who want them” voters, and also of angering and enervating the activists who want the politicians they support to be as bold and courageous as they are by trying to accommodate the former. I believe we have no choice but to try, whatever the risks are.

Like I said, I don’t know the answers. I’m just trying to frame the questions. I welcome your feedback.

Countersuit in the “wrongful death” abortion saga

May 3rd, 2023

by Charles Kuffner.

Comments are off for this post

Wild.

A man who is suing his ex-wife’s friends for allegedly helping her get an abortion may have known about her plans and done nothing to stop her, according to a new legal filing.

Marcus Silva brought a wrongful-death lawsuit in March in Galveston County, claiming three women helped his now-ex-wife obtain abortion-inducing medication and “conceal the pregnancy and murder from Marcus, the father of the unborn child.”

The lawsuit is the first of its kind since the overturn of Roe v. Wade last summer. Silva is seeking a million dollars in damages from each plaintiff.

But now, Jackie Noyola and Amy Carpenter, two of the women accused of facilitating the abortion, are countersuing Silva, claiming that he found the medication and text messages laying out their plans before his ex-wife underwent the abortion.

“Rather than talking with [his ex-wife] about what he found or disposing of the pill, Silva took photos of the texts and surreptitiously put the pill back,” the lawsuit reads. “He wasn’t interested in stopping her from terminating a possible pregnancy. Instead, he wanted to obtain evidence he could use against her if she refused to stay under his control, which is precisely what he tried to do.”

The countersuit contains a screenshot of a police report Silva allegedly made to the League City Police Department on July 17, claiming he found a pill labeled MF in his ex-wife’s purse almost a week prior. He identified the pill as mifepristone, a common abortion-inducing medication.

It’s not clear what became of the police report, but the legal filings seem to agree Silva’s ex-wife took the medication, intending to terminate her pregnancy. Silva confronted her two weeks later, the lawsuit says, and told her he knew about the abortion.

He threatened to use the screenshots and evidence he had gathered to have her sent to jail if she didn’t “give him my ‘mind body and soul’ until the end of the divorce, which he’s going to drag out,” she wrote in text messages to Noyola and Carpenter. She said Silva was asking her to sell the house, give him primary custody of the children and “basically [play] wife.”

Texas law does not allow criminal or civil charges to be brought against the pregnant patient who undergoes the abortion; Silva’s ex-wife is not a party to the lawsuit.

Noyola and Carpenter are countersuing Silva for violating their right to privacy and the Texas Harmful Access by Computer Act, which makes it a crime to access a computer without the consent of the owner. They note that if there is a violation of the state’s abortion laws, Silva is as responsible as anyone, since he knew about the medication and did nothing to stop it.

“The hypocrisy of Silva seeking more than a million dollars in damages is as shocking as it is shameful,” the filing says. “It is a craven misuse and abuse of the judicial system to facilitate his ongoing harassment and abuse of his ex-wife.”

[…]

If this case proceeds, the countersuit filing raises several potentially important legal arguments about how and when Texas’ intersecting abortion laws can be enforced. One argument centers on the laws’ exemption from legal liability for the pregnant patient.

“It is not illegal or wrongful for a woman to terminate her own pregnancy,” the suit says. And thus, the lawyers argue “it is not illegal or wrongful to help a friend do something she is legally permitted to do … Nor should it be.”

See here for the background and here for a copy of the countersuit, helpfully annotated on Twitter by Mark Joseph Stern. I have no idea what the legal terrain of this one will be, but I feel reasonably confident saying that it will ultimately be about more than just whether Marcus Silva snooped on his ex-wife’s computer. I’ll wait to hear from legal experts about what all that might mean. The Chron, which notes that the two women are represented by Rusty Hardin, and the Texas Signal have more.

What does abortion as a political issue really look like in Texas now?

May 1st, 2023

by Charles Kuffner.

2 comments

In my earlier post about what the likely Biden/Trump rematch looks like in Texas, I said that abortion really wasn’t tested here as a political issue in 2022. I said I’d like to see it be a real focus for next year, if only to get an answer to that question. It was this tweet that got me thinking along those lines.

[email protected] poll shows public opinion has done a 180 on abortion in last 20 years. SCOTUS may not care, but everyone on ’24 ballot should.

Jan ’03
44% Always legal/most of time
54% Illegal/w/ exceptions
(-10)

Today
58% Always legal/most of time
38% Illegal/w/ exceptions
(+20)

— John Della Volpe (@dellavolpe) 9:20 AM – 23 April 2023

It’s great that NBC News has this deep archive of polling data, especially since they’ve asked the same question, which allows for direct comparisons. The shift over time is indeed striking. It’s important to remember, however, that believing abortion should be legal “most of the time” is likely not incompatible with a 15-week ban, as proposed by Sen. Lindsay Graham, in the minds of many voters. There are of course major issues with such a ban, beginning with the fact that most conditions that cause fetal death and serious health risks for the mother cannot be detected until several weeks after that artificial deadline. There’s also the critical question of availability, especially in states that would continue to have other restrictions like wait times and requiring multiple office visits, all of which contribute to having fewer clinics and running out the clock on many women who don’t live near them. I do not expect that anyone who is currently mad about Dobbs and the continued crusade by the zealots to expand it further would be fooled by this proposal. But it’s a reminder that not only is how a poll is worded very important, it’s also the case that however you do word it, people will interpret what it means their own way. Getting at how people understand what the wording means, and what the consequences of their preferred interpretations may be, is incredibly difficult.

A few days after that tweet, Politifact in the DMN did its own study of national opinion on abortion.

Every year, the pollster Gallup asks people about their satisfaction with aspects of American life. Respondents saying they are “very dissatisfied” with “the nation’s policies regarding the abortion issue” have spiked somewhat.

In 2021, 30% of survey respondents said they were “very dissatisfied” on abortion policy. In 2022, the share rose to 41%, and in 2023, it rose to 48%. (As recently as 2014, the share saying this was as low as 19%.)

This finding is broadly echoed in polling by Quinnipiac University that was completed at shorter intervals before and after Roe was overturned.

In May 2021, 57% of respondents told Quinnipiac that abortion should be legal in all or most cases, while 37% said abortion should be illegal in all or most cases. But Quinnipiac’s most recent survey, from February 2023, found 64% saying abortion should be legal in all or most cases, while 29% said abortion should be illegal in all or most cases.

This shift has also been seen in some state-level polling. In Arkansas, which has some of the nation’s strictest abortion laws, the percentage of respondents to the Arkansas Poll saying that it should be “more difficult” to get an abortion dropped from 50% to below 30% from 2020 to 2022, while the share saying it should be “easier” showed the reverse pattern, climbing from about 13% to 32%, said Janine Parry, director of the Arkansas Poll at the University of Arkansas.

However, polling in Wisconsin shows less dramatic shifts.

Charles Franklin, director of the Marquette Law School Poll, said he has “not seen much change” across multiple questions his polling operation has asked in national polls.

For instance, from September 2021 to September 2022 — a period spanning the time before and after the Supreme Court’s ruling — the Marquette poll asked about overturning Roe. (Before the decision, the question was posed about a potential future decision overturning Roe; afterward, the question involved the decision itself.)

Excluding respondents who said they didn’t know anything about a potential or actual decision, the percentage of respondents who opposed it fell modestly, from 72% to 67%, while the percentage that had heard of the decision and supported it rose equally modestly, from 28% to 33%.

Still, these figures showed that respondents favored the abortion-rights position by about a 2-1 margin in a politically competitive state.

And national polling data from the Democratic firm Navigator also shows a general dissatisfaction with the Republican position on abortion, said Margie Omero, a principal with the Democratic research firm GBAO. Asked whether they “approve or disapprove of how Republicans in Congress are handling” abortion policy, 35% approved, compared to 56% who disapproved.

Different polls, different wording, but the overall trend is similar. Again, though, you have to consider what people might have understood the question to mean. Some number of those “very dissatisfied” people could be the forced birth zealots who are upset that overturning Roe didn’t mean that abortion is banned everywhere. In Arkansas, where the laws are so drastic, there’s little room for “more difficult”. Surely some of the people who used to want it to be more difficult now think it’s just right, and some of those thinking it should be easier are just thinking in terms of rape/incest/health of the mother exceptions. While clearly some people are more pro-choice than before, it’s hard to say how many, and how important it is to them.

Now again, all that said, the overall trend across multiple polls, as well as the objective evidence of the 2022 election and abortion referenda in states like Kansas and Kentucky and Montana, strongly suggest that the pro-choice position is the more popular, and the extremist stance now being touted by most Republicans is a loser, while no one buys their soggy attempts at “moderation”. It stands to reason, as we have seen in Presidential horse race polls, that the national shift implies related shifts across the states. And that brings us to Texas.

There is polling data for Texas. The Texas Politics Project has polling data that goes back to 2008. The problem is that they vary the questions from poll to poll, so direct comparisons are tricky. There are a couple of close-enough points we can look at. For example, from July 2008:

Do you believe that abortion should be:

29% generally available
15% more limited
35% illegal except in cases of rape/incest/to save the life of the mother
17% never permitted
5% Don’t know/refused/NA

Who knows what “generally available” and “more limited” mean, especially since the third choice is fairly limited. However you want to look at it, the mostly-to-all-illegal positions are a majority. Now here’s October 2018:

What is your opinion on the availability of abortion?
15% By law, abortion should never be permitted.
29% The law should permit abortion only in case of rape, incest or when the woman’s life is in danger.
12% The law should permit abortion for reasons other than rape, incest, or danger to the woman’s life, but only after the need for the abortion has been clearly established.
39% By law, a woman should always be able to obtain an abortion as a matter of personal choice.
5% Don’t know

I couldn’t begin to tell you what “only after the need for the abortion has been clearly established” means, but given the rest of that question it seems to be about abortion being somewhat more accessible than just the rape/incest/health of the mother exceptions. If we count that as a “generally available” option, then the pro-choice position is now in the majority. Note that at the time this was conducted, we were still more than three years away from the Dobbs decision.

In October 2022, we get a chart summarizing the course of one particular question:

Do you think that abortion laws in Texas should be made more strict, less strict, or left as they are now?


         Stricter  As now  Less strict  DK/NA
=============================================
Oct 2022       18      25           50      8
Aug 2022       20      21           49     10
Feb 2022       23      23           43     12
Apr 2021       33      22           33     11
Feb 2021       32      18           37     13
Feb 2019       41      20           32      8
Jun 2013       38      21           26     14

Two things to keep in mind here. One is that between April 2021 and February 2022, the Lege passed the vigilante bounty hunter law SB8, which had the effect of making surgical abortion basically illegal and almost completely unavailable. That also means that before then, the “as it is now” option was technically a pro-choice one, while after SB8 it’s an anti-abortion one. In reality, given the widespread closures of clinics after the passage of HB2 in 2013 – you remember, the omnibus anti-abortion bill that was aimed at making it extremely difficult for clinics to operate, the bill that was famously filibustered by Wendy Davis – the “as now” choice was more likely to be favored by those who preferred a strict regime, just because – as noted above – on a practical level abortions were hard to access, especially outside the big urban areas. Vibes-wise, it was mostly anti-abortion before 2021, and definitely anti-abortion after 2021.

With all that said, you can see the clear shift after the passage of SB8. The “less strict” number jumped ten points in less than a year, and was up by 17 points in a year and a half. By August 2022, which is now post-Dobbs, the “less strict” answer is a majority (okay, almost in August but there in October). The trend is there.

Still, there are reasons to be cautious about this. In October 2014 (scroll to page 15) and February 2023 (page 32), the poll gives various specific scenarios for when an abortion might be legal or illegal, which mostly break down to the rape/incest/health of the mother situations and discretionary, abortion-on-demand situations. In both years, there’s a clear distinction between the former, which generally has strong support, and the latter, where support is at best a plurality, and even then comes with limits.

The interpretation I have for this is that poll respondents are broadly sympathetic to women who “need” abortions, but less so – sometimes much less so – to women who “want” abortions. That’s going to make the messaging for this super challenging, with vagueness likely to be the best strategy. The key difference between now and, say, 2014, when Republicans gleefully clubbed Wendy Davis over the head for her pro-choice positions, is exactly that the facts on the ground have changed. People are more likely to understand that women who “need” abortions simply cannot get them in Texas, and that this is harmful to them. That opens the door, but how much that door can swing past the “rape/incest/health of the mother” milestone is a question I can’t answer. As I’ve been saying, I strongly believe we need to test this, but I fully acknowledge that it won’t be easy to do and there are downsides if we fail. I just don’t think there’s any other way forward.

Anyway, this is my manifesto for 2024. I welcome your feedback.

On the (likely) future Biden/Trump matchup

Apr 27th, 2023

by Charles Kuffner.

1 comment

It’s way too early to pay any attention to state polling, but there are a few general principles to discuss here.

President Joe Biden announced his reelection bid on Tuesday, setting up a potential rematch with former President Donald Trump — two candidates most Texas voters have said should not run again.

Biden’s pitch, made in a 3-minute video, seemed tailored to a Texas audience as the president focused on a slew of issues Republicans in the state have prioritized, including outlawing abortion, restricting LGBTQ rights and banning books.

“Around the country, MAGA extremists are lining up to take those bedrock freedoms away,” Biden said in his announcement video. “Cutting Social Security that you’ve paid for your entire life while cutting taxes for the very wealthy, dictating what health care decisions women can make, banning books, and telling people who they can love — all while making it more difficult for you to be able to vote.”

“The question we are facing is whether in the years ahead we have more freedom or less freedom, more rights or fewer,” he said.

But the president heads into 2024 with a lot of ground to make up with Texas voters, 43 percent of whom had a very unfavorable view of Biden in the latest polling by the Texas Politics Project at the University of Texas at Austin.

And former President Donald Trump, who has dominated polling in the GOP primary, is just as unpopular in Texas, with 42 percent saying he is very unfavorable.

Sixty one percent of Texas voters, meanwhile, said Biden should not run, while 58 percent said the same of Trump, according to the poll, which was released in February.

Still, Biden fared better in Texas in 2020 than any Democratic presidential candidate in years, losing the state to Trump by just 6 percentage points.

[…]

Biden likely got a boost in 2020 from independent voters who had a very negative view of Trump. They now have a worse impression of Biden, with 54 percent of independents seeing him as very unfavorable, compared to 42 percent who said the same of Trump.

While few think Biden will actually win the state in 2024, whether or not he can improve on his past performance largely depends on who else is on the top of the ticket, said Joshua Blank, research director at the Texas Politics Project.

U.S. Sen. Ted Cruz, who narrowly won reelection over Democrat Beto O’Rourke in 2018 and faces a 46-percent disapproval rate in the state, is also seeking reelection. His campaign could have an impact, depending on the quality of the Democratic candidate challenging Cruz, who would likely be the primary focus of Democratic effort in Texas, Blank said.

“I think a fair case could be made that GOP congressional and Texas legislative candidates might perform better with someone besides Trump and Cruz leading the ticket,” Blank said. “Biden might find Texas a greater challenge facing a GOP candidate other than Trump who doesn’t carry the same baggage as the former president — and someone who he hasn’t already beaten, at least nationally.”

I don’t take the “shouldn’t run again” numbers too seriously, for either candidate. Biden’s overall popularity among Dems is high, and I feel confident that when the choice becomes “Biden or Trump”, he’ll have no trouble getting Dems in line. I mostly think the same for Trump, though he has much bigger potential pitfalls in front of him, nearly all of which will be faced in a courtroom. Biden’s main areas of concern are his age, the potential that he could backslide on issues Dems care about, and not being seen as putting up enough of a fight against Republican malfeasance and creeping authoritarianism. He’s striking the right notes for now, and as long as he stays on that path I feel pretty good about what’s ahead.

A big unanswered question for me is how the abortion issue will play in Texas in 2024. While its largely positive-for-Dems effect in 2022 in other states is well known, it really wasn’t tested as an issue here. The 2022 election was much more about the grid and (in the wake of Uvalde) guns. I don’t have any criticism of that – those were super salient issues, ones on which the Republicans should have been plenty vulnerable – but they didn’t work as we would have liked them to work. The scenario I hope for, both from the Biden campaign and from the campaign of the Democratic nominee for Senate, whether Roland Gutierrez (not yet confirmed, for what it’s worth) or Colin Allred or someone else, is basically a promise to restore Roe v Wade, with extra language to head off the more recent attempts to curtail abortion access (in other words, codify what was in the Hellerstedt decision) and a ban on bounty hunter civil suits. This also requires winning back the House and having enough Senators willing to nuke the filibuster, but you have to start by setting the stakes, and doing this sure does make flipping the Ted Cruz seat that much more of a prize.

Will this work? I mean, we have over 30 years of results to suggest that the odds are against it, but it would give plenty of people – including, I would think, independents and the kind of Republicans that have been pretty reliably crossing over in some number of races since 2016 – a reason to turn out and support Dems at the top of the ticket. It would be nice to have everyone pulling in the same direction, and who knows, it might mean some real national investment in these races. Like I said, we’ll remain the underdogs, but it’s at least a coherent vision. That’s better than what we’ve usually had.

Meanwhile, in other mifepristone news

Apr 26th, 2023

by Charles Kuffner.

Comments are off for this post

Keep an eye on this.

A federal judge said during a Monday hearing that he’s leaning towards ruling in favor of a company that makes generic mifepristone in its quest to prove it has standing to sue over West Virginia’s abortion ban.

The West Virginia officials are trying to get the case dismissed, arguing that the company is rooting its argument in claims about speculative economic damage — that it does not claim that it ever sold mifepristone in West Virginia or describe any plans to do so.

Judge Robert Chambers, a Clinton appointee in the southern district of West Virginia, said GenBioPro, the mifepristone manufacturer, is winning him over as he considers the arguments.

“To be honest with you — because I want you to be able to respond — the closer we’ve gotten to this hearing the more inclined I am to conclude that there is injury in fact, that they don’t have to have that level of contact in sales within the state that they might have to have for some other purpose,” Chambers said to one of the lawyers for the West Virginia defendants.

He detailed that GenBioPro has been in the business of making generic mifepristone for a few years, that its markets seem to have expanded as the Food and Drug Administration lifted restrictions on mifepristone’s prescription and distribution and that the drug is used in the vast majority of medical abortions.

“All of that seems to me to start tipping the balance much more towards the plaintiff in a finding that this is not a generalized grievance, this is not a speculative economic loss, this is something pretty direct,” he added.

Chambers said he would try to issue a ruling on the standing question in the next several days, and that if he finds GenBioPro to have it, indicated that he’d like to have the parties back in to argue the merits of the case in mid- to late-May.

GenBioPro filed this lawsuit against West Virginia in January, after the state adopted a more stringent abortion ban post-Dobbs. It’s the first of its kind to move forward, though GenBioPro had filed and then later withdrawn a lawsuit against Mississippi last August. I couldn’t tell you what the differences were between those two suits, but you can find out more about the WV one here.

Two things to note here. One is that GenBioPro also recently filed a lawsuit in Maryland to protect existing access to mifepristone, as a hedge against what SCOTUS would do with the Kacsmaryk ruling. That suit is still in its initial stages. And two, I would think that a favorable ruling here, if it withstands appeals, would open the door to a similar challenge in states like Texas that have equally draconian laws. Again, I don’t know why the Mississippi lawsuit was withdrawn, and I definitely don’t have the legal knowledge to say with any degree of confidence how other states may or may not be like West Virginia in this regard. I am saying that it’s a possible avenue of attack, and I’m sure folks here will be keeping an eye on it. Given the likely timeline, a much better route would be winning enough in 2024 to pass federal laws protecting abortion access more broadly. But it never hurts to have some redundancy.

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.

Kacsmaryk’s disclosure problem

Apr 19th, 2023

by Charles Kuffner.

Comments are off for this post

What is it with these wingnut judges and their inability to follow the law?

As a lawyer for a conservative legal group, Matthew Kacsmaryk in early 2017 submitted an article to a Texas law review criticizing Obama-era protections for transgender people and those seeking abortions.

The Obama administration, the draft article argued, had discounted religious physicians who “cannot use their scalpels to make female what God created male” and “cannot use their pens to prescribe or dispense abortifacient drugs designed to kill unborn children.”

But a few months after the piece arrived, an editor at the law journal who had been working with Kacsmaryk received an unusual email: Citing “reasons I may discuss at a later date,” Kacsmaryk, who had originally been listed as the article’s sole author, said he would be removing his name and replacing it with those of two colleagues at his legal group, First Liberty Institute, according to emails and early drafts obtained by The Washington Post.

What Kacsmaryk did not say in the email was that he had already been interviewed for a judgeship by his state’s two senators and was awaiting an interview at the White House.

As part of that process, he was required to list all of his published work on a questionnaire submitted to the Senate Judiciary Committee, including “books, articles, reports, letters to the editor, editorial pieces, or other published material you have written or edited.”

The article, titled “The Jurisprudence of the Body,” was published in September 2017 by the Texas Review of Law and Politics, a right-leaning journal that Kacsmaryk had led as a law student at the University of Texas. But Kacsmaryk’s role in the article was not disclosed, nor did he list the article on the paperwork he submitted to the Senate in advance of confirmation hearings in which Kacsmaryk’s past statements on LGBT issues became a point of contention.

Now, six years later, as Kacsmaryk sits as a judge in Amarillo, Tex., his strong ideological views have grabbed the country’s attention after his ruling this month that sought to block government approval of a key drug used in more than half of all abortions in the country — an opinion that invoked antiabortion-movement rhetoric and which some medical experts have said relied on debunked claims that exaggerate potential harms of the drug.

Kacsmaryk did not respond to a request for comment. A spokesman for First Liberty, Hiram Sasser, said that Kacsmaryk’s name had been a “placeholder” on the article and that Kacsmaryk had not provided a “substantive contribution.” Aaron Reitz, who was the journal’s editor in chief at the time and is now a deputy to Texas Attorney General Ken Paxton (R), said Kacsmaryk had been “our chief point of contact during much of the editing” and “was the placeholder until final authors were named by First Liberty.”

But one former review editor familiar with the events said there was no indication that Kacsmaryk had been a “placeholder,” adding that this was the only time during their tenure at the law review that they ever saw author names swapped. The former editor, who spoke on the condition of anonymity out of fear of reprisal, provided emails and several drafts of the article.

The circumstances surrounding the article’s authorship raise questions about whether a judicial nominee was seeking to duck scrutiny from a process designed to ensure that judges are prepared to interpret the law without personal bias, said lawyers who worked on judicial nominations in Republican and Democratic administrations — speaking hypothetically and not specifically about Kacsmaryk.

Adam H. Charnes, who worked on judicial nominations while the principal deputy in the Justice Department’s Office of Legal Policy under President George W. Bush, said he would not have advised potential nominees to withdraw articles they had written or to publish them under others’ names.

“I’m pretty sure the Senate would expect you to produce something like that,” Charnes said.

The scenario “strikes me as problematic,” he said — and, he added, “a little shady.”

Ya think? The ludicrous thing is that this probably wouldn’t have tanked his nomination. Kacsmaryk was nominated precisely because he’s a foot soldier in the forced birth wars. Who was going to vote against him, or not want to have to vote for him, among those who supported him if this had come out? As to what happens now, I have no idea, but probably nothing. The story doesn’t suggest any likely consequences. Sure must be nice to be this guy – he’s making the law, and he’s above it. What else could you want?

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.

Feds take steps to protect abortion health data

Apr 13th, 2023

by Charles Kuffner.

Comments are off for this post

Good.

The Biden administration released a raft of proposals related to keeping abortion-related health information private Wednesday morning. Some of the measures are specifically targeted to shield providers from prosecution, so far the primary way red states are seeking to criminalize the procedure.

The headline announcement is that the Health and Human Services Department is issuing a notice of proposed rulemaking to strengthen privacy protections under the Health Insurance Portability and Accountability Act (HIPAA).

“This rule would prohibit doctors, other health care providers, and health plans from disclosing individuals’ protected health information, including information related to reproductive health care, under certain circumstances,” per a White House fact sheet. “Specifically, the rule would prevent an individual’s information from being disclosed to investigate, sue, or prosecute an individual, a health care provider, or a loved one simply because that person sought, obtained, provided, or facilitated legal reproductive health care, including abortion.”

Idaho broke new ground in its attempt to criminalize providers last week, when Gov. Brad Little (R) signed a law making it illegal for a minor to cross state lines for an abortion without permission from her parent or guardian. The law would open up both the person helping the minor get the abortion and the doctors — even if they’re out of state — to prosecution.

The Biden administration will also release guidance reminding various entities — schools, doctors — of their obligations in safeguarding patient privacy.

This is similar in nature to the laws passed by states like Washington to protect its residents from being sued by bounty hunter states like Texas. None of those laws have been tested yet so it’s hard to say how effective this might be. It’s also a certainty that the usual suspects will go running to one of their favorite judges in Texas again to block this, on the grounds that Jupiter is in retrograde or something equally valid. It’s a good move regardless of that, but it also underscores the need to pass a federal law guaranteeing abortion access. That has to be the goal, and that’s going to take winning the House and getting the right Senate majority. And if one of those puny Trump judges finds a way to block this, then at least the stakes have once again been clarified. NBC News, Reuters, Daily Kos, and the Associated Press have more.

The doctors involved in the lawsuit to clarify Texas’ draconian forced birth law

Apr 13th, 2023

by Charles Kuffner.

Comments are off for this post

Good stuff.

Last spring, Dr. Judy Levison started to give her routine answer when a patient, who was 15 weeks pregnant, asked why she should receive a blood test that picks up certain fetal defects.

Some women simply want to prepare themselves, the longtime Houston obstetrician-gynecologist explained. For others, she said, certain abnormalities may cause them to consider abortion.

“I suddenly get to the word abortion, and it was like ‘Oh, huh, I can’t really offer that in the state of Texas anymore,’” said Levison, noting that Texas already had implemented an abortion ban at six weeks. “And my patients generally didn’t have the means to go traveling to other states… I just realized I was in this quandary, and I couldn’t offer what I thought was right.”

That moment was part of what caused Levison to partially retire last year and join fellow Houston OB-GYN Dr. Damla Karsan in publicly pushing back against the state’s abortion restrictions, at a time when most doctors fear speaking out could jeopardize their livelihoods. The two doctors signed onto a lawsuit brought by five women who say they were denied abortions despite having dangerous or nonviable pregnancies. The plaintiffs are not asking to overturn the law, but rather to clarify when abortions legally can be provided.

The Center for Reproductive Rights, which backed the suit, said it is the first time pregnant women have taken legal action against bans enacted by Texas and at least 12 other states since the U.S. Supreme Court overturned Roe v. Wade in June.

After working in Houston for more than two decades, Levison and Karsan see the case as a chance to fight for colleagues and patients caught between legal penalties and ethical treatment.

See here and here for some background. The rest of the story is a couple of biographical sketches of Doctors Levison and Karsan, who is a Rice grad for those of you keeping track of that sort of thing. It’s a good read, and it’s very good to know there are people willing to stand up and do their part when the need arises.

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.

Mifepristone access banned and expanded

Apr 9th, 2023

by Charles Kuffner.

4 comments

So as you might have heard, this happened on Friday.

U.S. District Judge Matthew Kacsmaryk in Texas stayed the Food and Drug Administration’s (FDA) approval of abortion drug mifepristone nationwide Friday, including in blue states with robust abortion protections.

The ruling will take seven days to go into effect; the Department of Justice immediately appealed it.

“My Administration will fight this ruling,” President Joe Biden said in a statement. “The Department of Justice has already filed an appeal and will seek an immediate stay of the decision.”

The same night, a separate judge in Washington state issued an order stating exactly the opposite: that the FDA maintain “the status quo” in terms of access to the drug in the states involved. The Department of Justice said in a statement it was reviewing the Washington decision.

The conflicting opinions make it highly likely the question will soon end up before the Supreme Court.

It’s not immediately clear what the effect of either ruling will be: The FDA has unfettered enforcement discretion, and there are plenty of drugs without approval on the market.

[…]

The Texas decision was expected by all involved — Kacsmaryk, a Donald Trump appointee, is a constant Biden administration antagonist. He presides over all cases filed in Amarillo, and right-wing litigants have learned to file there to be sure they’ll get a judge sympathetic to their cause.

His decision is peppered with anti-abortion language and sentiment. “Because mifepristone alone will not always complete the abortion, FDA mandates a two-step drug regimen: mifepristone to kill the unborn human, followed by misoprostol to induce cramping and contractions to expel the unborn human from the mother’s womb,” he writes. He also refers to providers as “abortionists” throughout.

He regurgitates the common anti-abortion lies that mifepristone is dangerous, blatantly disregarding the consensus of the medical community, and that abortions cause women overwhelming emotional distress and regret.

His handling of the case has been at times bizarre and drawn scrutiny, including an attempt to keep a key hearing in the case secret from the press and the public until the last minute.

That Kacsmaryk has the power to issue a nationwide injunction from just one case only makes the conservative goal-to-sweeping result pipeline even more of a glidepath.

Should the Texas case be appealed, there’s not much guaranteed salvation ahead for supporters of abortion access (and those who support miscarriage care, cancer care and the many other medical treatments that involve abortions). The case will next go to the famously right-wing Fifth Circuit Court of Appeals, then, presumably, to the majority anti-abortion Supreme Court.

Over in Washington, a coalition of Democratic attorneys general filed suit to expand access to mifepristone, arguing that the FDA should lift its years-old restrictions that major medical organizations have long argued are rooted in politics, not science. While the Biden administration made the drug somewhat easier to obtain this January — including allowing certified pharmacies to dispense it — it maintained other restrictions.

In his opinion ordering that mifepristone be kept available, Judge Thomas Rice pointed out that “the record demonstrates potentially internally inconsistent FDA findings regarding mifepristone’s safety profile,” citing the fact that mifepristone prescribed for Cushing’s disease — rather than abortion — is not subject to those onerous restrictions.

Another countervailing lawsuit is still playing out in West Virginia, where a maker of mifepristone is suing West Virginia, arguing that its abortion ban is violating both the Supremacy and Commerce Clauses of the Constitution in overriding the FDA conclusion that the drug is safe.

See here and here for some background; the opinions are embedded in the story above. I had a draft a couple of days ago about the hearing for the mifepristone-expansion lawsuit but didn’t publish it in time; I’ve put that post beneath the fold, as the arguments made during the hearing are worth reading. There’s been a ton of commentary already – see here, here, here, here, here, here, and here for so much more. I don’t have anything to add to all that, but I did find it grimly amusing that the long-awaited and feared Texas decision came down a couple of days after State Supreme Court Chief Justice Nathan Hecht said this;

Texas Supreme Court Chief Justice Nathan Hecht called on state lawmakers Wednesday to increase judicial salaries and create a new court system to handle disputes between businesses.

The comments came in his biennial speech on the state of the judiciary, during which he also cautioned against the increasing politicization of the third branch of government. He cited the recent Wisconsin Supreme Court election in which the winner was an outspoken liberal, and comments by former President Donald Trump and a Democratic U.S. senator characterizing court rulings as partisan.

“I grow concerned that political divisions among us threaten the judicial independence essential to the rule of law,” Hecht, a Republican, said in the Texas Supreme Court courtroom in Austin. “The left and right, and leaders in both the executive and legislative branches, are in agreement: Judges are not independent, and shouldn’t be; they should take sides — my side.”

He urged judges against partisan decisions, saying the pressure to comply with politics “destroys the rule of law essential to justice for all.”

Both the Texas Supreme Court and Texas Court of Criminal Appeals, the highest court for criminal matters in the state, are made up of all Republicans.

You couldn’t find a more blatant example of this than Matthew Kacsmaryk, whose only qualification for the bench, for which he was hand-selected by the radical conservative legal movement, was his anti-abortion activism. There’s a reason why so many cases, filed by Ken Paxton and various zealots of that movement, get heard by him. Please update your references for future use, Justice Hecht.

(more…)

The Observer on the effect that banning abortion has had on Texas doctors

Apr 2nd, 2023

by Charles Kuffner.

Comments are off for this post

I’m glad this won’t end up being one of their last stories.

Doctors have a code, a set of principles meant to guide their practice: Give care. Act justly. Respect patients. Do no harm. But for Texas doctors, especially obstetrician-gynecologists, following those seemingly straightforward principles has become a legal and ethical minefield.

Physicians are finding themselves torn between providing medically appropriate care and staying in compliance with the state’s draconian anti-abortion laws. The stakes couldn’t be higher: risking major fines and up to life in prison for doctors on one side, and on the other, often putting women’s lives at risk because of delays in care or refusals to provide formerly routine procedures. As a result, medical decisions regarding pregnancy complications now involve a host of new stakeholders—hospital administrators and lawyers—who may put questions of institutional risk above patient well-being.

Dr. Shanna Combs, an OB-GYN, waded into that minefield a few months ago while on her shift at a maternity care hospital in Fort Worth. Her patient, 19 weeks along in her first pregnancy, was in bad shape. Her water had broken prematurely, and she’d gone into labor much too early. By the time Combs got to her, she’d been laboring for 48 hours. Her child had a heartbeat but was several weeks away from being strong enough to survive outside the womb.

“Previously, we would call this an inevitable miscarriage or inevitable pregnancy loss and offer the patient options to help the process along in order to minimize risk of infection for the mother,” Combs said. Those options include counsel for pregnancy termination through a surgical procedure as well as the prescription of Misoprostol, a labor-inducing medication that is also used as an abortion medication in the first trimester.

But now, “Basically when the mother’s water breaks before viability, if there’s a heartbeat, you’re not allowed to do anything,” Combs explained. She could only coach her patient—emotionally distraught and physically in pain—through another 12 hours of labor to deliver a baby that couldn’t and didn’t survive.

“She really had to suffer,” Combs said. Unsurprisingly, the woman developed a serious infection that kept her in the hospital for another day.

For many expectant mothers, the state’s abortion laws have turned what is already a devastating reality—the loss of a wanted pregnancy—into an even more excruciating and sometimes life-threatening process. The laws have not only prohibited access to elective pregnancy termination, but they’ve also obstructed the path for timely and medically appropriate care for many Texans experiencing pregnancy complications.

Combs and other doctors said they are now forced to provide a lower quality of medical care to patients. She and her colleagues are left with “a lot of anger and frustration, and feeling like patients are not able to get the care that they deserve.”

[…]

Although treatment for pregnancy complications and abortion access might be perceived as entirely different things, medically speaking they’re not. Doctors often treat patients experiencing pregnancy loss by using the same tools and procedures that they would in an elective abortion: by prescribing labor-inducing medication or performing a dilation and curettage or evacuation (D&C or D&E) to remove remaining pregnancy tissue.

Under Texas’ abortion ban, it’s this type of standard of care treatment for pregnancy loss and other pregnancy complications that has fallen under scrutiny. The law provides an exception, permitting abortions when a patient faces “a life-threatening physical condition aggravated by, caused by, or arising from a pregnancy.” But the vague language paired with a hefty criminal penalty for doctors—up to $100,000 in fines and life in prison—has had a chilling effect, leaving interpretations up to doctors and their lawyers and effectively discouraging the use of treatments that would once have been routine.

“When it became criminal, that’s where the line was drawn,” Combs said. “That’s your livelihood. That’s who you are as a person. You could go to jail. You will have to pay fines; you’ll lose your license. If you get out of jail, you won’t be able to practice medicine.”

Attorney Blake Rocap of Austin provides counsel to abortion advocacy groups around the state. “We’re in a situation where lawyers are also providing a lot of risk analysis,” he said. “They’re telling their clients, ‘We don’t really know how this is going to be interpreted, we think this [abortion] is protected activity, we think this qualifies as under the medical emergency exception, but no one knows for sure.’”

Rocap said such legal uncertainty discourages doctors from providing care. They know, he said, that “if they don’t do anything, they’re certainly going to be in compliance.”

In the months since the passage of the state’s trigger law, media reports have detailed stories of pregnant Texans denied miscarriage care, sent home to bleed in their bathtubs, offered care only after a patient has deteriorated enough to develop a life-threatening condition such as sepsis, or forced to cross state lines for treatment.

Even when a doctor believes an abortion is medically necessary to save a woman’s life, often the best advice that lawyers can offer to that doctor is that it “probably” is legal, Rocap said. “When the penalty is 20 years to life, ‘probably’ is not good enough.”

See here and here for similar stories. I drafted this one a few days after the Slate story that I blogged about, and on the same day as the announcement of the Observer’s demise, which thankfully turned out to be premature. I had opened a tab for this and had been thinking about blogging it, but this one was right on the heels of the Slate story, and it didn’t make me think of any new angles, just more examples of the same damaging truth. I then decided I had to blog this as a tribute to the Observer. There’s less urgency to that aspect of it now, but the story should remain in the forefront of our minds. So here it is, with a slightly more complicated backstory than I originally intended.

Another “future doctor shortage” article

Mar 29th, 2023

by Charles Kuffner.

1 comment

Third in the series. This one covers our future nurse shortage, too.

More than a year and a half after Texas implemented its six-week abortion ban, and months after Dobbs, medical providers say they are facing impossible situations that pit their ethical obligation to patients who are dealing with traumatic and dangerous pregnancy complications against the fear of lawsuits, loss of their medical licenses, and incarceration. The problem is encapsulated by a lawsuit filed this month in Texas, in which five women and two OB-GYNs sued the state over the abortion bans that they say have created so much confusion and fear among providers that it has affected women’s health and even threatened their lives. Unsure of how to comply with the new rules, hospitals have interpreted them differently, with some requiring approval from attorneys or ethics boards for physicians to provide abortion care in medical emergencies, and others leaving it up to individual doctors, with little guidance or support. This has meant that some physicians wait until patients are near death to intervene in medical emergencies, according to recent research, court filings, news reports, and interviews. “I’ll get consults from another doctor asking me what to do in a particular case—a mother bleeding, or a pregnancy where there’s an infection in the womb before the baby can survive outside the womb. I have doctors calling me, hesitating, not quite knowing what to do because the baby has a heartbeat, when clearly the mother’s life is at risk,” John Visintine, a maternal fetal medicine specialist in McAllen, Texas, told me. “These are things that I haven’t seen in, you know, 20 years of practicing OB, 14 years of practicing high-risk OB—I’ve never run into these situations where people are wondering what to do.”

The inability to provide what they say is the standard of care to pregnant patients is taking a toll, personally and professionally, according to interviews with more than a dozen doctors and nurses across Texas. And it’s causing many, like Wilson, to reconsider the future of their career in the state. Almost every provider I spoke with for this story has thought about leaving their practice or leaving Texas in the wake of S.B. 8 and Dobbs. Several have already moved or stopped seeing patients here, at least in large part because of the abortion bans. “If I was ever touch a patient again, it won’t be in the state of Texas,” said Charles Brown, chair of the Texas district of the American College of Obstetricians and Gynecologists (ACOG), who stopped seeing patients last year after decades working as a maternal fetal medicine specialist. Many asked that their hospital affiliation not be included in this story, in some cases because they feared consequences from their employer or the public for speaking out about these laws, even though they’re not breaking them. Some worry about what will happen to their own kids if they are targeted. Several cried through the interviews. Many of those I spoke with who haven’t left yet are still thinking about it regularly—people who have family and homes and lives in Texas and would not otherwise have considered moving.

Brown put the stakes bluntly: “Are people quitting? … The answer is yes,” he said. “I hope I’m 100 percent wrong about this, but I think it’s a much bigger trend that’s going to become obvious pretty quickly.”

[…]

This is all happening as Texans can’t afford to lose more access to medical care. In 2022, 15 percent of the state’s 254 counties had no doctor, according to data from the state health department, and about two-thirds had no OB-GYN. Texas has one of the most significant physician shortages in the country, with a shortfall that is expected to increase by more than 50 percent over the next decade, according to the state’s projections. The shortage of registered nurses, around 30,000, is expected to nearly double over the same period. Already, Texans in large swaths of the state must drive hours for medical care, including to give birth. According to recent research from the nonprofit March of Dimes, it is among the worst states for maternity care access, which has decreased in a dozen Texas counties in the past two years, mostly due to a loss of obstetrics providers.

This doesn’t yet take into account the effects of increased criminalization of abortion care, which is further compounded by dramatic pandemic-induced burnout among clinicians. As physicians retire, hospitals are struggling to replace them; as nurses burn out or leave for more lucrative travel nursing roles, their positions are sitting open. There have been a string of policies and factors that have stretched providers in Texas for many years, from having the highest uninsured rate in the country to low Medicaid reimbursement rates to the demonization of science to attacks on transgender health care, and now the abortion bans, according to Tom Banning, the CEO of the Texas Academy of Family Physicians. “The first rule of holes, when you’re trying to get out of the hole, is to stop digging,” he said. “We just continue to dig the hole that we’re in deeper.”

This is an issue for both urban and rural areas, but it’s felt most acutely outside major metros, where one retirement or move can be the difference between having access to medical care near home or having to drive an extra several hours. The state has experienced the most rural hospital closures in the country in recent years. Less than half of rural hospitals nationwide still have labor and delivery services, according to recent research from the Chartis Center for Rural Health; in Texas, that number is just 40 percent. John Henderson, the president and CEO of the Texas Organization of Rural and Community Hospitals, said he gave a presentation this fall for a group of representatives from about 100 rural Texas hospitals where he asked them to raise their hand if they don’t currently have openings for registered nurses. “There were three out of 100 that were fully staffed, and I was actually surprised that there were three,” he said. “It’s crisis-level staffing for the majority of rural Texas hospitals.” Maternity wards have long been the sacrificial lamb for cash-strapped rural hospitals trying to save money and keep their doors open, but more recently, it’s short staffing that has forced closures and cuts to services in Texas and across the country.

See here and here for the previous entries. The problems with rural hospitals and the general unavailability of maternity care are separate but related phenomena. I realize that the plural of “anecdote” isn’t “data”, but there sure are a lot of anecdotes, and some of them do come with data, so.

It is of course possible that none of this gets beyond the anecdote stage. Some of the people quoted in the story admit that it’s tough to leave even as they get pushed past what they thought their point of tolerance was. Maybe the effect will only be truly felt in rural areas where they keep on voting for the Republicans that create and exacerbate these problems for them. Maybe it’s dumb to expect Republicans to feel the consequences for any of their actions, given that they haven’t felt them for the freeze or for the continued epidemic of mass shootings. I don’t know what’s going to happen. But as long as these stories keep getting written, I’ll keep pointing them out.

Abortion funds go back to work

Mar 27th, 2023

by Charles Kuffner.

Comments are off for this post

Glad to see it, but I’m waiting for another shoe to drop.

Some abortion advocacy nonprofit groups have resumed paying for Texans to get abortions out of state after a court ruling last month.

These groups, called abortion funds, stopped paying for abortion procedures and travel to out-of-state clinics after the overturn of Roe v. Wade, citing confusion and fear of violating Texas’ intersecting abortion bans.

Virtually overnight, all of Texas’ abortion clinics closed — and the infrastructure that helped Texans access out-of-state care evaporated alongside them. Many of the people these funds work with likely could not afford to leave the state without their financial support, said Denise Rodriguez, communications director with the Texas Equal Access Fund.

“When we found out we had to pause funding, that was something that was really heartbreaking for everybody on our team,” Rodriguez said. “Now that we’re able to start funding abortions again, that’s what this organization was started for, so everybody is just excited.”

The Dallas-based TEA Fund provides Texans vouchers that lessen the costs of abortions at out- of-state clinics. Rodriguez said they have enough funding to assist anyone who calls in between Monday, when their hotline reopens, and June 24, the one-year anniversary of the overturn of Roe v. Wade.

Fund Texas Choice, a statewide group that assists with travel expenses, said on Twitter that they have reopened their hotline and are resuming limited practical support.

The Austin-based Lilith Fund has also reopened its hotline and is funding out-of-state abortions again, a spokesperson said.

Other groups are preparing to relaunch their funding mechanisms as well. This flurry of activity comes after a federal judge granted a temporary injunction in February, blocking a handful of county prosecutors from pursuing charges against anyone who helps a Texan access abortion out of state.

The ruling is not binding statewide, but it has reassured some groups enough to resume operations.

“All of it is so uncertain, but we’re going to fund abortions until we’re forced to stop,” Rodriguez said.

See here for the background. I fear this is what an economics professor of mine would have called an unstable equilibrium. Something will happen, either a ruling in an existing lawsuit, the filing of a new lawsuit, the passage of a new law in the Lege, some Presidential executive action, or something else like that, that will disrupt this. All things considered, I’d expect it to be something bad. What it is and when it might happen, I have no idea. I just don’t think what’s happening now will still be the case in, say, another six months or a year. I’ll refer to this post later when we find out.

Whole Woman’s Health opens its New Mexico clinic

Mar 25th, 2023

by Charles Kuffner.

Comments are off for this post

A little bittersweet, I have to say.

One of the largest independent abortion providers in the nation opened a new clinic in New Mexico on Thursday, nearly nine months after it shuttered its clinics in Texas after the U.S. Supreme Court overturned Roe v. Wade.

Whole Woman’s Health of New Mexico opened its Albuquerque clinic on Thursday. The clinic is expected to see 19 patients over the next few days, with 18 of them coming from Texas.

The clinic currently offers first- and second-trimester abortion procedures to people who are up to 18 weeks pregnant, with plans to expand to up to 24 weeks in the near future.

Whole Woman’s Health opened its first Texas clinic in Austin in 2003 and later expanded throughout the state. The organization had four clinics in Austin, McAllen, Forth Worth and McKinney before it announced plans to leave the state and reopen in New Mexico.

“As we open our doors to both local communities and those forced to migrate from other states for care, we remain unbelievably grateful for the thousands of supporters from around the world that came together to make this clinic a reality,” Amy Hagstrom Miller, the president and CEO of Whole Woman’s Health, said in a news release.

The New Mexico clinic is located minutes from the Albuquerque International Sunport Airport and all of its staff members are bilingual, the news release says.

[…]

Whole Woman’s Health said New Mexico has become a “refuge” for patients seeking abortion care, including from Texas and Oklahoma, which is also among the 13 states that banned nearly all abortions after Roe v. Wade was overturned.

“Today marks the next chapter of our organization,” Marva Sadler, senior director of clinical services for Whole Woman’s Health, said in the news release. “In these times when abortion rights, health, and justice are under attack, our Albuquerque clinic will serve as a safe haven for abortion care,”

In June 2022, Whole Woman’s Health launched a GoFundMe campaign to relocate its Texas clinics to New Mexico, with more than 3,500 donors giving more than $300,000 toward the effort.

See here for the background, and here for a copy of the press release. I’m glad they are able to get back to the important business of caring for women and their reproductive needs. Lord knows, we need them. I just hope that someday they’ll be able to open back up here in Texas.

Oklahoma Supreme Court upholds abortion rights

Mar 22nd, 2023

by Charles Kuffner.

Comments are off for this post

Of interest, for obvious reasons.

A divided Oklahoma Supreme Court on Tuesday overturned a portion of the state’s near-total ban on abortion, ruling women have a right to abortion when pregnancy risks their health, not just in a medical emergency.

It was a narrow win for abortion rights advocates since the U.S. Supreme Court struck down Roe v. Wade.

The court ruled that a woman has the right under the state Constitution to receive an abortion to preserve her life if her doctor determines that continuing the pregnancy would endanger it due to a condition she has or is likely to develop during the pregnancy. Previously, the right to an abortion could only take place in the case of a medical emergency.

“Requiring one to wait until there is a medical emergency would further endanger the life of the pregnant woman and does not serve a compelling state interest,” the ruling states.

In the 5-4 ruling, the court said the state law uses both the words “preserve” and “save” the mother’s life as an exception to the abortion ban.

“The language ‘except to save the life of a pregnant woman in a medical emergency’ is much different from ‘preserve her life,'” according to the ruling.

“Absolute certainty,” by the physician that the mother’s life could be endangered, “is not required, however, mere possibility or speculation is insufficient” to determine that an abortion is needed to preserve the woman’s life, according to the ruling.

The court, however, declined to rule on whether the state Constitution grants the right to an abortion for other reasons.

The court ruled in the lawsuit filed by Planned Parenthood, Tulsa Women’s Reproductive Clinic and others challenging the state laws passed after the U.S. Supreme Court overturned the landmark Roe v. Wade decision that legalized abortion.

I trust the parallel to the Texas lawsuit is clear. Slate adds some details.

Oklahoma outlaws abortion through multiple statutes, both civil and criminal, and these bans became enforceable after the U.S. Supreme Court overturned Roe v. Wade last year. One of the statutes contains an ostensible exception for the “life of a pregnant woman.” But as the court explained on Tuesday, this exception is extraordinarily narrow: It permits termination only when the patient is “in actual and present danger” of death. According to the statute, it is not enough for a doctor to determine that the pregnancy will kill her at some point in the future; that peril must be imminent. If a doctor provides an abortion before the patient is at sufficient risk of death, they face a $100,000 fine and 10 years’ imprisonment.

Reproductive rights advocates challenged this ban under the Oklahoma Constitution. Their lawsuit was risky: Five justices of the Oklahoma Supreme Court were appointed by Republicans while four were appointed by Democrats. But GOP appointee James R. Winchester crossed over to create a 5–4 majority in support of “a limited right to an abortion.” The majority found that this right was supported by two provisions of the state constitution that grant “all persons” the right to “life” and “liberty.” Reviewing Oklahoma’s history, the majority explained that the state’s abortion regime had always “recognized a woman’s right to obtain an abortion in order to preserve her life,” from before statehood through admission to the union and right on up until 2021, when the present law was enacted.

Because the right to abortion to preserve the patient’s life is “deeply rooted” in Oklahoma history, the majority held, any restriction on that right is subject to strict scrutiny, bolstered by a compelling state interest. “Requiring one to wait until there is a medical emergency,” however, “does not serve a compelling state interest” because it “would further endanger the life of the pregnant woman.” The majority therefore declared that portion of the law “void and unenforceable” and announced a new standard: Abortion is permitted whenever a doctor has “determined to a reasonable degree of medical certainty or probability that the continuation of the pregnancy will endanger the woman’s life.” That danger may arise from “the pregnancy itself” or “a medical condition that the woman is either currently suffering from or likely to suffer from during the pregnancy.”

The scope of this standard is not entirely clear, but it suggests that a patient can undergo an abortion if the doctor determines there will be a threat to her life at some future point “during the pregnancy.” This standard is different from that in Texas, where doctors are waiting until pregnant patients are on death’s door rather than terminating when conditions emerge that could be fatal later in the pregnancy. As the majority noted, “absolute certainty” that the condition would kill a patient if untreated “is not required,” though “mere possibility or speculation is insufficient.” In a long concurrence, Justice Yvonne Kauger, joined by Justices James Edmondson and Doug Combs, tried to clarify the new rule. A physician, she wrote, need not “wait until their patient has a seizure, a stroke, experiences multiple organ failure, goes septic, or goes into a coma” before terminating a dangerous pregnancy. The reasonable likelihood of life-threatening conditions justifies an immediate abortion.

Kauger pointed to a new Texas lawsuit to illustrate what this standard does not require. The plaintiffs in that case were forced to wait until they suffered sepsis, hemorrhage, and other horrific ailments before doctors would terminate. Such a narrow exception, Kauger wrote, affords women “fewer rights than a convicted murderer on death row,” imposing “a death sentence” without “due process or any provision for clemency or pardon.” (Kauger also included a long overview of women’s near-absolute denial of rights through most of American history, noting that Oklahoma’s historical abortion laws were passed at a time when men could legally beat their wives and women could not vote or serve in office.)

As that story notes, the Supreme Court of North Dakota allowed a block on its state’s abortion ban to remain in place while a lawsuit over it plays out. It too concluded that the state constitution provided for “a fundamental right to an abortion in the limited instances of life-saving and health-preserving circumstances”. Note that these are narrow exceptions to those states’ bans, but they do represent a step forward for abortion access post-Dobbs. Just having doctors not feel like their own lives are at risk when making this decision should make a difference.

There’s an irony here in that Oklahoma was one of five states to pass an anti–Obamacare “health care freedom” amendment to their state constitution, which has now been used to argue against state abortion bans in Ohio and Wyoming as well. (Wyoming just passed a law to ban abortion pills; we’ll have to see what happens when that inevitably gets challenged.) A lot of this litigation is still ongoing so it’s hard to say exactly where we’ll end up, and these states could always try to amend those amendments to craft an abortion exception. But for now at least, there’s a path forward in some red states to at least allow for minimal access.

None of this bears directly on Texas, of course. Each state has their own laws, Texas did not amend its constitution as those five other states did, and as we well know Supreme Court justices of all stripes can be and are political animals. I make no prediction about what will happen with the litigation here. What we do know is that similar lawsuits have found success elsewhere. I’ll take my hope where I can get it.

SCOTx denies pre-election challenge to San Antonio marijuana reform referendum

Mar 18th, 2023

by Charles Kuffner.

4 comments

First the voters will vote, then as needed the lawsuits will happen.

The Texas Supreme Court ruled Friday that any legal challenges to a proposed charter amendment on policing reforms must wait until after voters weigh in on the measure in the May municipal election.

While the court did not expressly deny the idea that the charter amendment could violate a state law prohibiting multi-subject charter amendments, Justice Jane Bland wrote that “voters injured by an election irregularity have remedies to address their injury after the election.”

The proposal brought forth by Act 4 SA and other progressive groups seeks to decriminalize marijuana and abortion, ban police chokeholds and no-knock warrants, expand the city’s cite-and-release program for nonviolent, low-level offenders, and create a city justice director to oversee the implementation of those changes.

The measure will be on the May 6 ballot as Proposition A.

Bland also suggested that an effort by three Northside councilmen to skip the City Council vote approving the measure for the ballot could have an impact on its future. Manny Pelaez (D8), John Courage (D9) and Clayton Perry (D10) left the dais shortly before the pro forma vote in February, viewing the measure as unenforceable.

“Sufficient post-election remedies exist that permit the voter to challenge any infirmity in the proposed amendment and its placement on the ballot — after the voters have had their say,” Bland wrote.

[…]

Council approved the ballot 7-0 in the absence of the three council members.

That move triggered a second challenge from TAL’s lawyers, which petitioned the court to remove the charter amendment from the May ballot on the grounds that the San Antonio City Charter prescribes a 10-day delay for ordinances that pass with fewer than eight votes to go into effect. That deadline was Feb. 17, a day after the council vote.

“Our role is to facilitate elections, not to stymie them, and to review the consequences of those elections as the Legislature prescribes,” Bland wrote. “We can readily do so in this instance through a post-election challenge.”

A dissenting opinion from Justice Evan Young pointed to the decision of the three councilmen who were absent from the vote as a pivotal move.

“None of the Court’s stated reasons apply here because they all depend on the same mistaken premise: the existence of a lawfully ordered special election,” Young wrote.

Young noted that in order to hold a special election, a city council must order it at least 78 days beforehand.

“The city council clearly failed to follow that binding legal requirement here,” wrote Young, who was joined by Justices John Devine and Jimmy Blacklock.

In a written response to TAL’s petition, outside lawyers for the San Antonio City Council argued that the city’s 10-day delay doesn’t apply to putting the Justice Charter on the ballot because Texas Election Code supersedes the city’s authority on the matter. The election code doesn’t stipulate the margin by which measures setting an election must be approved, the lawyers wrote.

See here and here for the background. I believe this was the correct ruling, and I agree with Justice Bland’s reasoning. I also think this proposition will face some significant legal headwinds if it does pass, but that’s a fight for another day. Until then, we’ll see how it goes in May. The Current has more.

Harris County creates reproductive health access fund

Mar 18th, 2023

by Charles Kuffner.

Comments are off for this post

Good.

In a bid to protect residents’ already restricted access to reproductive health care, Harris County officials voted to approve a proposed fund to go toward Harris County Public Health and smaller community organizations at Tuesday’s Commissioners Court meeting.

The reproductive health care access fund passed on a 4 to 1 vote, with Republican Precinct 3 Commissioner Tom Ramsey at odds with his Democratic counterparts.

This fund will allocate $6 million in federal dollars from the American Rescue Plan to assist Harris County Public Health and the partner organizations in providing reproductive care – including contraception, family planning education, preconception health screenings, and STI testing and treatment – to a minimum of 20,000 residents, said County Judge Lina Hidalgo.

It would not include abortion funding or related pregnancy termination services, as Texas has a total ban on abortion even in cases of rape or incest, allowing it only if continuing the pregnancy puts the mother’s life in danger.

The total amount will be distributed in three parts, with $1.1 million going toward expansions for Harris County Public Health’s services, $4.2 million to funding care at the partner organizations, and the remaining $700,000 for operating expenses for these partner organizations and the county’s health facilities.

This fund is a response to Hidalgo’s resolution passed last year following the Dobbs decision, which overturned Roe v. Wade, making abortion illegal in in most states, said Precinct 1 Commissioner Rodney Ellis, who accompanied Hidalgo at a press conference held on Monday at Planned Parenthood Gulf Coast’s headquarters.

“There is only so much we can do to stop these draconian, dangerous laws,” Ellis said. “But we can use the resources and power we have in Harris County for residents to access health care services they need to make decisions about their health, family and future. That is what this fund will do.”

Here’s a preview story in the Chron about this action. Because this was onetime grant money, the fund is in place for two years, and after that Commissioners Court will either have to pay for it themselves or find other sources for it. That’s a problem for Future Them; this will address a real need in the here and now, and that’s what matters. Here are a couple of tweets from Judge Hidalgo about it. Good job to the four members of the Court who made this happen.

More on the lawsuit that seeks to clarify exceptions to Texas’ forced birth laws

Mar 17th, 2023

by Charles Kuffner.

1 comment

A couple of interesting articles to read to enhance our understanding of the lawsuit filed by five women who claim that Texas’ anti-abortion laws have harmed them.

From Vox:

In theory, even after the Supreme Court’s anti-abortion decision in Dobbs v. Jackson Women’s Health Organization (2022), medically necessary abortions remain legal in all 50 states. Texas law, for example, is supposed to permit abortions when a patient is “at risk of death” or if they face “a serious risk of substantial impairment of a major bodily function.”

There’s also a federal law, the Emergency Medical Treatment and Labor Act (EMTALA), which requires most hospitals to perform emergency abortions to prevent “serious impairment to bodily functions” or “serious dysfunction of any bodily organ or part.” (Though, notably, Texas’s GOP attorney general, Ken Paxton, convinced a Trump-appointed judge to issue an opinion claiming that this federal abortion protection does not exist.)

But in practice, the new lawsuit claims, Texas physicians are often too terrified to perform likely legal abortions because the consequences of performing an abortion that the courts later deem to be illegal are catastrophic. The maximum penalty for performing an illegal abortion in Texas is life in prison.

This lawsuit, known as Zurawski v. Texas, asks the state courts to clarify when medically necessary abortions are legal within the state so that doctors can know when they can treat their patients without risking a prison sentence or a lawsuit.

[…]

These plaintiffs argue in their complaint that one reason why Texas doctors are unwilling to perform abortions, even when delaying an abortion risks a patient’s life, is that Texas law is a hodgepodge of multiple abortion bans, each with inconsistent provisions permitting abortions when a patient’s life or health is in danger, and none of which use medical terminology that doctors can rely upon to know exactly what they are and are not permitted to do.

Texas’s primary criminal ban on abortions, for example, provides that abortions are permitted when “in the exercise of reasonable medical judgment” a physician determines that their patient “has a life-threatening physical condition” or faces a “serious risk of substantial impairment of a major bodily function” that relates to their pregnancy.

Meanwhile, a separate statute, enacted before Roe v. Wade was decided in 1973, also bans abortions. And it does so with a much narrower exception for abortions performed “for the purpose of saving the life of the mother.” But it’s unclear whether, now that the Supreme Court has overturned Roe, this law remains in effect or not. While a federal appeals court determined in 2004 that this pre-Roe ban on abortions was “repealed by implication,” Attorney General Paxton claimed that the law is still enforceable after Roe was overruled.

And then there’s SB 8, the state’s bounty hunter law, which permits private citizens to sue doctors who perform abortions after the sixth week of pregnancy. That statute uses completely different language to describe when an abortion is allowed, permitting abortions “if a physician believes a medical emergency exists that prevents compliance” with SB 8.

Most of these statutes, moreover, were enacted when Roe was still good law. So there are few, if any, court decisions interpreting them, explaining how the multiple conflicting exceptions to the multiple different abortion bans interact with each other, or resolving disputes about which laws are actually in effect.

Typically, lawyers rely on past court decisions to predict how courts are likely to apply a statute to their clients. But, without many (or any) such decisions to rely upon, lawyers advising doctors and hospitals cannot provide reliable advice to those clients. And, again, if a doctor and their attorneys guess wrong about whether a particular abortion is legal, that doctor could wind up spending the rest of their life behind bars.

See here, here, and here for more on EMTALA, which is likely to end up before SCOTUS eventually. Author Ian Millhiser speculates about the possibility that the Zurawski case could clarify state law, but he has his doubts. Which leads us to this Slate story.

Make no mistake about it: Texas’ law has unique problems. The state’s conservative lawmakers kept the pre-Roe criminal ban passed in 1925; to circumvent Roe v. Wade, they passed S.B. 8. In 2021, after Donald Trump reshaped the Supreme Court, they passed a trigger law. Inconsistencies crept in, and the result is a mess that frightens doctors away from addressing real emergencies.

But the problems with Texas’ exceptions are broader, and they tell a story about why abortion exceptions as a general matter fail to protect patients. From the time of previous eras’ abortion bans, exceptions were tailored more to prevent free access to the procedure than to address real problems in pregnancy, and state abortion laws today are no exception.

When abortion reform efforts got underway in the 1960s, the American Law Institute proposed what amounted to a menu of exceptions to criminal abortion bans for patients seen to be innocent enough to deserve abortion (the ALI included exceptions for rape and incest, fetal abnormality, and certain health threats). Pushback from anti-abortion lawyers was immediate. They argued not just that abortion was immoral and unconstitutional, but also that the exceptions were an open invitation for fraud. Decades before Todd Akin’s comments about “legitimate rape,” they argued that pregnancy after sexual assault was all but impossible—and that rape exceptions were an excuse for promiscuous women. They framed health exceptions as universally unnecessary, arguing that virtually no pregnancies were life-threatening.

After Roe, anti-abortion suspicion of patients invoking exceptions only deepened. They pointed to Roe’s companion case, Doe v. Bolton, that defined health to include physical and mental well-being. For abortion opponents, that looked like an exception that could swallow the rule: wouldn’t anyone forced to remain pregnant suffer mental distress?

So after Congress passed the Hyde Amendment, a ban on Medicaid reimbursement for abortion in 1976, anti-abortion legislators worked to make it harder for patients to invoke exceptions or to eliminate them altogether. Sexual assault victims, for example, had to report to law enforcement within a certain time frame, and some Hyde proponents voted to eliminate all rape and incest exceptions.

Anti-abortion activists began using a similar strategy in model laws designed to chip away at Roe. For example, in the Pennsylvania law considered by the Supreme Court in Planned Parenthood of Pennsylvania v. Casey, anti-abortion groups proposed a medical emergency exception only to save a patient’s life or “create serious risk of substantial and irreversible impairment of major bodily function.”

The similarity to Texas’ law is no accident. For the anti-abortion movement, the narrow and ambiguous language adopted by Pennsylvania in the 1980s, and by Texas more recently, reflects the same beliefs: The most important issue is preventing abortion, and exceptions serve primarily to discourage what Republicans see as unjustified procedures. But the justifications of many plaintiffs are all too obvious. One patient diagnosed with “preterm prelabor rupture of membranes” was denied care, developed sepsis, nearly died, and suffered lasting impacts to her future fertility; another, pregnant with twins, was forced to travel out of state to maximize the chances of survival for herself and one of the twins when the second received a devastating diagnosis. These stories will almost certainly continue in Texas and states like it.

In other words, to borrow from a bit of wisdom that has been applied to the Trump regime, the lack of clarity is the point. We don’t know what the courts will make of this, but we can expect that Ken Paxton and the rest of the forced birth machinery will do everything in their power to keep threatening everyone who might try to get an abortion for any reason. You know what I’m going to say here, so say it with me: Nothing will change until we start winning more elections.

The unhinged abortion pill lawsuit hearing

Mar 16th, 2023

by Charles Kuffner.

Comments are off for this post

What a shitshow.

The future of medication abortion in the United States remains up in the air after a federal judge heard arguments Wednesday in a suit challenging the Food and Drug Administration’s long-standing approval of mifepristone.

U.S. District Judge Matthew Kacsmaryk said he would rule “as soon as possible” on the challenge brought by the Alliance Defending Freedom, a conservative, anti-abortion law firm.

ADF is asking Kacsmaryk to suspend — and ultimately withdraw — the FDA’s approval of the medication, which would have nationwide implications, especially in states where abortion remains legal. In the hearing, a lawyer for ADF conceded that this would be unprecedented, but argued that the court had the authority to intervene to prevent harm.

Lawyers for the Department of Justice and Danco Laboratories, the pharmaceutical company that produces generic mifepristone, argued that the lawsuit is meritless.

Granting a preliminary injunction would be “depriving patients and doctors of a safe and effective drug,” argued Julie Straus Harris, with the DOJ.

Since it was initially approved in 2000, mifepristone has been found to be overwhelmingly safe and effective for terminating pregnancies. Citing that body of evidence, the FDA has recently relaxed restrictions on the medication, which is used in the majority of the abortions in the United States.

In the suit, ADF is representing anti-abortion medical organizations and doctors who argue they have been harmed by having to treat patients who have experienced adverse effects from the medications — and that they anticipate increased harm as a result of these loosened restrictions.

They also argue the drug was initially approved improperly under an FDA regulation that fast-tracks drugs that treat serious illnesses.

“Pregnancy is not an illness,” said Erik Baptist, a lawyer for ADF, in Wednesday’s hearing. “Mifepristone doesn’t treat anything.”

Kacsmaryk, appearing to give weight to that argument, listed off all the drugs that were approved under this regulation before mifepristone, most of which treat HIV and cancer. Separately, he summarized Baptist’s argument as asking the court to “deem one of these not like the others.”

The hearing, which ran more than four hours in Kacsmaryk’s Amarillo courtroom, covered a wide range of arguments. But the central question before Kacsmaryk is not as much about abortion as it is about administrative procedure — and whether the plaintiffs have any right to bring this lawsuit at all.

See here and here for the background. I can’t overstate how ridiculous this all is, and that includes the extreme restrictions on coverage of the hearing, for which you literally had to be there or at a single courthouse in Dallas, but only a handful of people were allowed at the courtroom, and cellphones were banned, so no live-tweeting. All for a hearing at which one hand-picked judge could severely curtail access to abortion for millions of women across the country, based on vibes. I really hope I’m wrong, but I don’t see anything in the coverage I’ve read to suggest this guy will do anything other than what he clearly wants to do. We’ll find out soon. Jezebel, the Associated Press, Slate, Daily Kos, and NBC News have more.

UPDATE: From Slate, “If Kacsmaryk rewrites the history of mifepristone’s approval as grounds to pull it from the market, his decision should command no respect or acquiescence from anyone—not the FDA, not abortion providers, and certainly not the public at large.”

The hearing for that unhinged abortion pill lawsuit is today

Mar 15th, 2023

by Charles Kuffner.

1 comment

Like I said, brace yourselves.

A federal judge in Texas will hear arguments Wednesday in a closely watched dispute that could halt distribution of a key drug used for medication abortion and disrupt access nationwide, even in states where reproductive rights are protected.

The case before U.S. District Judge Matthew Kacsmaryk was brought in November by a conservative legal organization on behalf of anti-abortion rights medical associations and targets the Food and Drug Administration’s (FDA) decades-old approval of the drug mifepristone, one of two medications used to terminate an early pregnancy.

The associations have requested Kacsmaryk order the FDA to withdraw its 2000 approval of mifepristone, arguing the agency erred when it gave the green-light to the drug under a regulation that allows accelerated approval of medications for “serious or life-threatening illnesses.”

But the Biden administration has warned that such a step would harm patients who rely on abortion pills and further strain state health care systems, particularly in places with clinics already grappling with overcrowding as a result of abortion restrictions in neighboring states.

The parties will have two hours apiece to press their arguments before Kacsmaryk, and the judge laid out a host of issues for them to discuss Wednesday, including whether the associations have the legal standing to sue, whether an injunction would serve the public interest and the regulation under which mifepristone was approved.

Kacsmaryk could issue his decision on the associations’ request for a preliminary injunction any time after the hearing, though a quick appeal to the U.S. Circuit Court of Appeals for the 5th Circuit is expected.

[…]

In papers filed with the court, the anti-abortion rights groups claimed the FDA exceeded its regulatory authority to approve mifepristone and has over the years removed safeguards by changing the dosage and route of administration in 2016, and lifting an in-person dispensing requirement to allow the pills to be mailed in 2021.

“The FDA took these actions by running roughshod over the laws and regulations that govern the agency and, more importantly, protect the public from harmful drugs,” they argued.

The Biden administration countered that the challengers’ request for the court to withdraw approval of mifepristone is “extraordinary and unprecedented.” Administration lawyers said they have been unable to find any case where a court has “second-guessed FDA’s safety and efficacy determination and ordered a widely available FDA-approved drug to be removed from the market — much less an example that includes a two-decade delay.”

Taking aim at the associations’ claim that the FDA improperly accelerated approval of mifepristone without substantial evidence of its safety, Justice Department lawyers noted that the 2000 approval of the drug came more than four years after manufacturer Danco submitted its application.

The drug maker, too, told the court that forcing the FDA to withdraw its long standing approval of mifepristone would not only “seismically disrupt the agency’s governing authority as to whether drugs are safe and effective,” but also put Danco out of business.

“The public has no interest in a hastily cobbled together, and overtly political, attempt by private parties to wrest control of the drug approval process from the United States agency responsible for it — an agency that has acted deliberately, thoughtfully, and consistent with its authorizing statute and implementing regulations,” the company said.

See here for the background. Plenty of legal types have written at length about how specious and flimsy the plaintiffs’ arguments are, and how utterly lacking their claim of standing is, so I’ll just note that and move on. Whether any of that matters to this wingnut judge or not will only be known after his ruling. As for the coverage of this ridiculous lawsuit, TPM among others provided insight:

TPM has obtained, and is first to report, the transcript from the status conference, which was conducted over the phone.

The case centers on the Food and Drug Administration’s 20-year-old approval of mifepristone, a drug often prescribed with misoprostol to induce abortions. Anti-abortion groups are trying to get that approval revoked, which could send the drug’s availability into flux.

After some typical housekeeping, Kacsmaryk leans on the lawyers to keep the hearing quiet.

“Because of limited security resources and staffing, I will ask that the parties avoid further publicizing the date of the hearing,” he said. “This is not a gag order but just a request for courtesy given the death threats and harassing phone calls and voicemails that this division has received. We want a fluid hearing with all parties being heard. I think less advertisement of this hearing is better.”

He said that the case so far has brought “a barrage of death threats and protesters and the rest.”

“So we will have standard security protocols in place, but I’ll just ask as a courtesy that you not further advertise or Tweet any of the details of this hearing so that all parties can be heard and we don’t have any unnecessary circus-like atmosphere of what should be more of an appellate-style proceeding,” he added.

He then told the lawyers that he was going to purposefully keep the hearing off the docket until the day before the hearing, to keep it as under the radar as possible — a move that prompted questions and objections by observers when discovered. A Department of Justice lawyer on the call sought clarification about whether the hearing would be made public at some point Tuesday.

“To minimize some of the unnecessary death threats and voicemails and harassment that this division has received from the start of the case, we’re going to post that later in the day,” Kacsmaryk replied. “So it may even be after business hours, but that will be publicly filed.”

The absolute best case scenario here is that in the end this was all a massive waste of time and energy. Here’s hoping. CNN, ABC News, and CNBC have more.

The unhinged abortion pills lawsuit will take place in darkness

Mar 13th, 2023

by Charles Kuffner.

3 comments

Nothing about this is good.

The Texas judge who could undo government approval of a key abortion drug has scheduled the first hearing in the case for Wednesday but took unusual steps to keep it from being publicized, according to people familiar with the plans.

The hearing will be an opportunity for lawyers for the Justice Department, the company that makes the drug and the conservative group that is challenging it to argue their positions before U.S. District Court Judge Matthew Kacsmaryk. After they do, the judge could rule at any time.

Kacsmaryk scheduled the hearing during a call with attorneys Friday, said multiple people familiar with the call, who spoke on the condition of anonymity because they were not authorized to discuss it. Kacsmaryk said he would delay putting the hearing on the public docket until late Tuesday to try to minimize disruptions and possible protests, and asked the lawyers on the call not to share information about it before then, the people said.

Public access to federal court proceedings is a key principle of the American judicial system, and Kacsmaryk’s apparent delay in placing the hearing on the docket is highly unusual. The judge and his staff did not respond to emails requesting comment on Saturday evening.

The lawsuit seeks to revoke Food and Drug Administration approval of mifepristone, one of two drugs used in a medication abortion. The case has garnered widespread attention and protests.

A decision by Kacsmaryk to suspend FDA approval of mifepristone would immediately prompt major changes in how many abortion clinics across the country provide care. Some are planning to immediately switch to a misoprostol-only protocol, while others are planning to offer only surgical abortions. Any decision would likely be appealed to the conservative U.S. Court of Appeals for the 5th Circuit, and possibly to the Supreme Court.

[…]

Kacsmaryk told the attorneys that he also wanted to delay publicizing the hearing because courthouse members have received threats in the wake of the lawsuit, according to the people familiar with the call. Several people close to Kacsmaryk say the judge and his family have faced security threats since he ascended to the federal bench in 2019, and those threats have intensified ahead of the abortion pill ruling.

Before and after the Friday phone call with lawyers, The Washington Post repeatedly called and emailed Kacsmaryk’s chambers seeking information about it, but received no response. Kacsmaryk’s chambers also did not respond to a request that reporters be allowed to join the call.

Kacsmaryk was nominated by President Donald Trump and is known for his conservative views on issues like same-sex marriage and abortion.

By waiting to publicize the time of the hearing, Kacsmaryk and his staff could make it difficult for the public, the media and others to travel to the courthouse in Amarillo. The remote, deeply conservative city has few direct flights except from Dallas or San Antonio and is at least a four-hour drive from any of the state’s major, heavily-Democratic cities. Still, over 150 abortion rights advocates gathered there on a Saturday in mid-February to voice their support for abortion pills.

I noted this lawsuit when it was filed. There’s been a metric crap-ton of analysis and punditry and increasingly dire warnings about this lawsuit and the pernicious effect of court-shopping, and I’ll leave it to you to google around for all the screaming into the void you can handle. It’s possible that this maneuver means that Kacsmaryk has at least a dim idea that his actions have the potential to cause a massive shitstorm. It also may just be that he doesn’t care to deal with the media and he has the power to make his wishes come true. Either way, brace yourselves.

UPDATE: Chris Geidner has more.

The next frontier in forced birth litigation

Mar 12th, 2023

by Charles Kuffner.

1 comment

This is truly wild, and potentially very scary.

A Texas man is suing three women under the wrongful death statute, alleging that they assisted his ex-wife in terminating her pregnancy, the first such case brought since the state’s near-total ban on abortion last summer.

Marcus Silva is represented by Jonathan Mitchell, the former Texas solicitor general and architect of the state’s prohibition on abortions after about six weeks of pregnancy, and state Rep. Briscoe Cain, R-Deer Park. The lawsuit is filed in state court in Galveston County, where Silva lives.

Silva alleges that his now ex-wife learned she was pregnant in July 2022, the month after the overturn of Roe v. Wade, and conspired with two friends to illegally obtain abortion-inducing medication and terminate the pregnancy.

The friends texted with the woman, sending her information about Aid Access, an international group that provides abortion-inducing medication through the mail, the lawsuit alleges. Text messages filed as part of the complaint seem to show they instead found a way to acquire the medication in Houston, where the two women lived.

A third woman delivered the medication, the lawsuit alleges, and text messages indicate that the wife self-managed an abortion at home.

The defendants could not immediately be reached for comment. Silva’s wife filed for divorce in May 2022, court records show, two months before the alleged abortion. The divorce was finalized in February. They share two daughters, the lawsuit said.

[…]

The lawsuit alleges that assisting a self-managed abortion qualifies as murder under state law, which would allow Silva to sue under the wrongful death statute. The women have not been criminally charged. Texas’ abortion laws specifically exempt the pregnant person from prosecution; the ex-wife is not named as a defendant.

The legality of abortion in Texas in July 2022 is murky. The state’s trigger law, which makes performing abortion a crime punishable by up to life in prison, did not go into effect until August. But conservative state leaders, including Cain and Attorney General Ken Paxton, have claimed that the state’s pre-Roe abortion bans, which punish anyone who performs or “furnishes the means” for an abortion by up to five years in prison, went back into effect the day Roe v. Wade was overturned in June.

The legal status of these pre-Roe statutes remains a contentious question. In 2004, the 5th U.S. Circuit Court of Appeals ruled that those laws were “repealed by implication,” which U.S. District Judge Robert Pitman reaffirmed in a recent ruling. But Cain and others have repeatedly argued that the Legislature restored those laws into effect with recent abortion legislation. This issue went before the Texas Supreme Court, but the case was dismissed before a final ruling.

In 2021, the Legislature passed a law making it a state jail felony to provide abortion-inducing medication except under extremely specific circumstances.

Joanna Grossman, a law professor at SMU Dedman School of Law, said this lawsuit is “absurd and inflammatory.” Since the pregnant patient is protected from prosecution, there is no underlying cause of action to bring a wrongful death suit in a self-managed abortion, she said.

“But this is going to cause such fear and chilling that it doesn’t matter whether [Mitchell] is right,” Grossman said. “Who is going to want to help a friend find an abortion if there is some chance that their text messages are going to end up in the news? And maybe they’re going to get sued, and maybe they’re going to get arrested, and it’s going to get dropped eventually, but in the meantime, they will have been terrified.”

But it’s possible this lawsuit could get traction, said Charles “Rocky” Rhodes, a law professor at South Texas College of Law.

“It’s scary to think that you can be sued for significant damages for helping a friend undertake acts that help her have even a self-medicated abortion,” Rhodes said. “Obviously, the allegations would have to be proven, but there is potentially merit to this suit under Texas’ abortion laws as they exist now.”

Mitchell and Cain intend to also name the manufacturer of the abortion pill as a defendant, once it is identified.

“Anyone involved in distributing or manufacturing abortion pills will be sued into oblivion,” Cain said in a statement.

At first I thought this was an SB8 lawsuit, but it’s not. This is a lawsuit under the “wrongful death” laws, which would make this a lot broader, not to mention not having a $10K cap on how much you can sue for. Among other things, if the plaintiff wins, it would legally establish that a third party can claim an injury when a woman has an abortion. If the alleged father can do that – and bear in mind, the father could be a rapist or an abuser – then who’s to say that a would-be grandparent couldn’t make a similar claim. There are free speech implications as well, if even discussing abortion with a pregnant woman could land you in legal jeopardy. There’s some existing litigation out there about the First Amendment rights of abortion funds, but nothing has been decided yet. All this may sound far-fetched and overly dramatic, but look at the lawyers leading this charge, and what Briscoe Cain – who has said before that he doesn’t just want to make abortion illegal, he wants to make it “unthinkable” – is saying. If anything, I’m not being dark and paranoid enough.

What happens from here is hard to say, but one thing for sure is that these three women are going to be facing many thousands of dollars in legal bills, which among other things may put pressure on them to settle. Again, I’m quite certain that’s all part of the plan. This needs to be much bigger news, and not just in Texas. I’d really like to see national groups and national political figures make a big deal out of this, and not just for fundraising purposes, except to assist the defendants. This is what SCOTUS has unleashed on us, and it’s what these zealots want. We can’t afford to give an inch. The Chron has more.

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