How the right-wing is planning to use an old legal trick to block the abortion pill
Woman taking a pill (Shutterstock)

Legal analyst Elie Mystal noticed that the far-right groups that are trying to ban women's healthcare are shopping for the perfect court where they can get a ban on the pill used to terminate early pregnancies.

Writing for The Nation, the legal analyst explained that the Christian fundamentalists attempted to regulate family planning using their own religious ideology. One group, inaccurately named the Alliance Defending Freedom (ADF), is suing the FDA, which approved the drug decades ago. They claim that they didn't follow the procedure when approving the drug.

"The lawsuit is so ridiculous that it hardly warrants discussion on the merits," wrote Mystal.

He begins by explaining that there is a limit on how many years later a lawsuit can be brought. In this case, it's six years, and the pill has been approved for over 20. At the same time, the FDA's procedures were changed in the 2007 Congressional amendments. Congress agreed at the time that any drugs previously approved would fall under compliance with new rules. So, it's going to take a special kind of judge willing to ignore both Congress and the law to allow the ADF's case to go forward.

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The key argument that the group is using is that the drug, mifepristone, isn't safe, which is a lie. "No amount of Gregorian chanting from the self-appointed Uterus Inquisition Squad can prove it otherwise," wrote Mystal. Still, it has to be taken seriously because there judge, Matthew Kacsmaryk, could be just the guy willing to ignore those barriers.

Mystal described the Texas judge as the bad guy in the book The Scarlet Letter.

"He was an anti-gay crusader for a Christian right law firm before Trump raised him up to be a judge. He claims that homosexuality is a 'disorder.' He’s attacked the right to contraception and denounced the 'sexual revolution' of the 1960s and ’70s," the legal analyst. Kacsmaryk has stopped short of burning people at the stake, however.

"Since rising to the bench, Kacsmaryk has functioned as a wish-fulfillment machine for the most wackadoodle right-wing causes and legal theories," Mystal wrote. "He once ordered the Biden administration to reinstate Trump’s 'Remain in Mexico' immigration policy—and then tried to do it again, even after he was overruled by the Supreme Court. In addition to the mifepristone case, Kacsmaryk will also be presiding over Children’s Health Defense v. Washington Post. That’s the ludicrous case in which death-cult anti-vaxxers allege that major media organizations violated antitrust laws and 'conspired' to shut down anti-vax websites because the companies refused to publish or promote vaccine misinformation."

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It might not make sense to sue the Washington Post, a Washington, D.C. newspaper in Texas, but Mystal said that activists have been trying to use a 21st century version of "forum shopping." It's a legal trick where people file cases in states more favorable to them. Think of it like what Trump did with Florida Judge Aileen Cannon. His document case involved issues that were already being heard in Washington, D.C. and the warrant was approved by a judge in Palm Beach, where Mar-a-Lago is and was searched. Trump shopped for another judge in Florida that was willing to step in. She was ultimately publicly humiliated by the appeals court and the Supreme Court.

The Supreme Court tried to stop "forum shopping," but these days, they're outright "judge shopping," Mystal said. From those judges, appeals can go to a court that is then more friendly to such cases, like the Fifth Circuit Court of Appeals "that presides over Texas, have been captured by right-wing extremists." It's basically a smoother road to the Supreme Court, which is now led by the far right.

It's unclear how it will go, but it's something Mystal argued should be watched.

Read the full piece at The Nation.