With the Supreme Court set to rule on whether to stay a lower court ruling restricting the Food and Drug Administration's authorization of the abortion drug mifepristone, former federal prosecutor Barbara McQuade tore into the lower judges' decisions on MSNBC's "Deadline: White House" on Friday.
The original ruling by Trump-appointed District Judge Matthew Kacsmaryk of Amarillo was partially blocked by a three-judge panel of the Fifth Circuit Court of Appeals, but certain elements of it, including revoking the approval for prescribing it by telemedicine, would be allowed to stand.
"When you start to unravel ... making it impossible to receive the care is the point when you look at eliminating the option of having medication mailed to you, if the Supreme Court agrees providers will not mail pills to patients, but the Comstock Act's overbroad language could make it illegal to transport to pharmacies or clinics," said anchor Nicolle Wallace. 'The next Republican president probably would enforce the ban. We have reported on great local stories of OBGYNs making plans with custody if they go to prison for doing their jobs. What are we living through in your view, Barbara?"
"It is a really strange time," said McQuade. "The Comstock Act is a very old law that made it a crime to send 'obscene materials' through the mail, extending that to medication for abortion is quite a stretch. Not something contemplated when that law was put on the books."
"There are two other arguments in this case that really should make any lawyer's head explode, regardless of what you feel about abortion law. This is just a farce," McQuade continued. "Number one is standing. Before a case should be heard, there should be a real matter of interest, a real harm. These doctors have a very theoretical harm, if someday, if someone uses the medication and goes wrong and they end up at this hospital and they are the doctor that has to help complete this abortion, their rights will be violated. That's a speculative harm. That alone should be enough to dismiss the case. The other one is that a judge could overrule a decision by the FDA that a drug should be on the market. It has been for 23 years. If this case is allowed to stand, no drug on the market is safe. Pharmaceutical companies will not have the kind of assurances they need for the research and development to invest in the manufacture of drugs."
"If this were any other issue but abortion, the Supreme Court would have thrown the case out, and the only reason they take the time is because it's such a hot-button cultural issue," added McQuade. "If you look at this on the law, this case should not be in the court."
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