🚨 BREAKING: Judge Matthew Kacsmaryk halts FDA's approval of mifepristone

[In It to Win It]

Chris “Subscribe to Law Dork!” Geidner
@chrisgeidner

BREAKING: Judge Matthew Kacsmaryk halts FDA’s approval of mifepristone, the a medication abortion drug. He has put his opinion on hold for 7 days to allow the government to appeal.

Here is the 67-page ruling: https://storage.courtlistener.com/recap/gov.uscourts.txnd.370067/gov.uscourts.txnd.370067.137.0_8.pdf

From before footnote 1, it is clear that there are going to be problems with this opinion. But, footnote 1 really lets it all out.

Link to tweet

[Novara]

1. How does a judge have the jurisdiction to reverse approval of a drug?

I am a scientist. I am FUCKING sick and tired of non-scientists making scientific decisions!

[gratuitous]

7. Especially after the time to challenge the approval has long since passed

I'm positive the judge has twisted judicial logic into a neat pretzel overcoming such basic matters as the standing of plaintiffs to bring suit and why they aren't subject to the administrative deadlines in place for bringing a challenge.

[Ms. Toad]

20. I haven't read the opinion,

but the claims were not scientific in nature. They had to do with the limited rule-making/enforcing role of the FDA.

Members of the executive branch are only permitted to make rules (regulations) within the grant made by Congress. If the rule exceeds the congressional grant, the rules are unenforceable. Same goes for actions taken under those rules. If the rules are unenforceable, the actions taken under those rules are unauthorized.

Courts settle the disputes between the legislative and executive branch when (as here) an allegation is made that the executive branch exceeded its authority.

(I don't believe they did exceed the authority - but that is where the jurisdiction comes from - the authority to make and enforce rules, not the expertise to make scientific evaluations.)

[Novara]

22. OK, but how in hell do the plaintiffs have standing?

AND, way out of the public comment period prior to drug approval? It was fucking approved more than 20 years ago!

And will they retroactively come after the Pill too?

Completely unscientific bullshit.

[Ms. Toad]

30. Again, it has nothing to do with science.

It's a separation of powers issue.

Comment period is irrelevant as to whether the executive agency has rule-making authority. It has to do with the wisdom and impact of regulations as viewed by the public.

Standing is more complicated, but essentially people who are impacted by the regulation, or entities who represent those people.
There isn't a statue is limitations for determining whether an executive agency exceeded is rule-making authority. There are equitable bases for saying it's to late, but no hard fast rules. The opinion wades through it, but unless you're a civil procedure nerd, it is pretty dense reading.

As for the pill, I doubt it. But not knowing the details of it's approval, I suppose anything is possible.

[electric_blue68]

2. Women are Not your Broodmares!

[The Unmitigated Gall]

3. *ahem*

That's DOCTOR Judge Matthew Kacsmaryk, to y'alls out there.

[Victor_c3]

4. What happened to letting the states decide for themselves on abortion?

I’m absolutely disgusted by this.

I really hope this continues to piss off the electorate and leads to more major Democrat victories. That’s the only possible silver lining to this.

[Hugh_Lebowski]

5. FUCK FUCK FUCKITY FUCK FUCK. This is some fucking bullshit. (nt)

[CaliforniaPeggy]

8. Right there with you, my dear Hugh. Fucking bullshit indeed. nt

[Hugh_Lebowski]

15. My girlfiend is a PA who supervises other PA's, including in Texas

And we just read this together. She's (of course) liberal like all of us, and she's beside herself.

Contemplating gummies for us both in order to calm down.

We're so pissed

[Hong Kong Cavalier]

6. Of course he did.

That man has far too much power.

[walkingman]

9. Texas is a backwards ass state...I know I'm a Texan.

[WhiskeyGrinder]

10. Don't sleep on the Washington decision also just issued:

Link to tweet

[Blaukraut]

13. Oops? Now what?

USSC?

[Ms. Toad]

21. Appellate court first.

If two circuits are also in conflict, then USSC.

[Blaukraut]

28. Thanks! n/t

[W_HAMILTON]

11. Bless his heart, thinking he will issue this on a Friday evening of a holiday weekend...

...and maybe it won't get the news coverage it otherwise would.

He and his Republican cronies will continue to get fucked by the MAJORITY electorate that will punish them for making such ignorant decisions as these.

Looking now to see when my next elections are...

[bucolic_frolic]

12. Science and progress halted by religion manipulating law

Frivolous judge, imo

[Takket]

14. this decision should be completely ignored by the medical/scientific community

what are they going to do? imprison the companies that make it? the UPS drivers that deliver it? The doctor's that write scripts for it based on TWENTY THREE years of proof that it is safe?

No... fuck this guy.............. this is not a decision we should just shut up and put up with. Enough is enough. it is bad enough Roe was taken away but at least people still had access to this drug no matter where they live, and the option to travel to free states for care they need. but this one judge making this decision for the entire country? FUCK THAT SHIT.

I assume, since this will be appealed, that the drug will remain legal as the appeal process plays out?

[senseandsensibility]

16. Friday night news dump before a Holiday week-end

no less.

[walkingman]

17. If this eventually goes to SCOTUS - made up of 6 pedophile supporting Catholic justices

mifepristone will be ruled illegal. Welcome to Gilead.

[Johonny]

32. It's approved by the FDA so I assume states will just ignore the ruling

and dare federal law enforcement to enforce the law like they do medical marihuana laws now.

[roamer65]

18. Ignore the ruling, please Governor Whitmer.

Fuck some stupid Texass judge.

[BlueCheeseAgain]

19. Our judicial system is seriously flawed.

Forum shopping is out of control.

[LetMyPeopleVote]

23. Who is surprised by this?

This asshole issued this poorly reasoned opinion late on a Friday of a holiday weekend

Link to tweet

[LetMyPeopleVote]

24. Washington judge just issued a dueling injunction PROHIBITING the FDA from pulling mifepristone off

Link to tweet

[In It to Win It]

25. [phone]

[ismnotwasm]

27. Nice!

[Sympthsical]

26. Whut

Combined with the ruling out of Washington, my brain is just going "Fight! Fight! Fight!"

This shit is going to keep happening when precedent gets overturned willy nilly. Legal and social stability suffer. Yeah, enjoy what you've wrought, Supreme Court.

Lawfare about to get interesting.

(I do not expect the SC to uphold the ban. And I really wish I had a lot more confidence in making that statement. I'm like, 70/30 on that one).

[ForgedCrank]

29. It's just

a temporary suspension due to an ongoing lawsuit, and it's only for 7 days to allow time for a filing and pending ruling on the case. It says it right in the first page posted there.

[In It to Win It]

31. Should've been denied anyway