Lawyer Burns Down Texas Judge's Ruling On Abortion Pill In One Fell Swoop - Exclusive
Legalities regarding Mifepristone — the abortion pill — became murky in early April, when a Texas judge ruled that the long-used drug could be dangerous to those using it. However, as Los Angeles attorney Vineet Dubey exclusively told Women.com, the arguments against Mifepristone don't hold much water.
To recap, April 7 saw United States District Judge Matthew Kacsmaryk file a memorandum opinion and order against the FDA. The crux of his argument is that the use of the pill could be dangerous to users — and that the FDA had pushed it through for approval before it could be adequately tested (but more on that, later). On top of that, Kacsmaryk argued that the FDA had shut down any attempts to review the drug's approval since then. The Texas judge concluded by granting a stay on the use of Mifepristone. And, because Kacsmaryk is a federal judge, that decision would have nationwide implications.
Well, kind of. In wake of the stay order, a fellow United States District Judge, Washington's Thomas Rice, issued a ruling to the contrary on the very same day. Rice ruled that a nationwide stay on the long-approved drug would be entirely, "inappropriate." Given the major contradiction, though, this fight is far from over. In fact, Dubey told us that it was likely headed for the Supreme Court. In the meantime, however, the Los Angeles attorney is with Rice in saying Kacsmaryk's order is inappropriate. In fact, he went so far as describing the ruling as "clumsy."
The notion that the FDA cut corners is bogus
In his memorandum opinion and order, Kacsmaryk suggested that the initial approval of Mifepristone back in 2000 was irregular, suggesting the drug hadn't been sufficiently tested enough at the time. However, according to Attorney Vineet Dubey, that simply isn't true. Speaking exclusively with Women.com, Dubey explained, "The FDA took more than four years to approve the drug." What's more, he added that the pill had long been tested for its safety in regions outside of the U.S. "[Mifepristone] had been rigorously studied and approved by several European countries in the late 1980s," he pointed out. As such, to insinuate that Mifepristone was hastily pushed through would be misleading, to say the least.
Misleading or not, Kacsmaryk's argument could set a dangerous precedent for how drugs are reviewed, and the fact that it's been accepted should be cause for serious concern. In fact, speaking to The New York Times, Georgetown University Professor and global health expert, Lawrence Gostin told the outlet that the stay was, "A frontal assault on the legitimacy of the FDA" On that, Dubey concurred, adding that Mifepristone's long-held approval across the globe only made it more outrageous. It was incredibly damaging, he explained, "That a court could, on some clumsy reasoning, just ban a medication that spent a longer time being tested for efficacy and potential harm to the public than the judge spent in law school."
Kacsmaryk's argument is precarious, in general
Judge Matthew Kacsmaryk's argument isn't only dubious when it comes to Mifepristone's approval, says Vineet Dubey. In fact, according to Dubey, the arguments in favor of revoking the drug's legality have less to do with the safety of the drug, and more to do with the way it's been distributed since 2021.
"Judge Kacsmaryk built his decision on the Comstock Act, a law dating back to 1873 regulating the use of the postal service to send any type of obscene, lewd, lascivious, 'immoral,' or 'indecent' publications through the mail," Dubey explained to Women.com. It's safe to say, the Los Angeles attorney isn't particularly impressed with the idea of using that to put a stay on the pill, altogether. "That's pretty shaky ground," said Dubey.
Shaky ground seems to be the theme, here — especially because, thanks to Judge Thomas Rice's order, the legality of and access to Mifepristone hangs in the balance. So, what happens now? Dubey doubled down that this matter will, in all likelihood, be handled by the Supreme Court. "This direct clash of separate federal judges' opinions must be dealt with and clarified, and the only body who can definitively do that is the Supreme Court," he said. Ultimately, he continued, there's a good chance Mifepristone will remain accessible for the time being — especially now that the DOJ has also appealed. "This could mean the medication will remain available for several more months," he pointed out. Time will tell whether this precarious ruling is upheld.