Photo: Evelyn Hockstein/Reuters
A Texas judge overseeing a lawsuit in which a conservative group is questioning the legality of the abortion drug mifepristone has scheduled the first hearing in the case for Wednesday, but ordered court officials not to release the date until the previous evening.
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According to sources cited by the Washington Post, Matthew Kacsmaryk, a US District Court judge in Amarillo appointed by Donald Trump in 2019, ordered the hearing kept off the court record to try to limit disruption and protests , and also urged lawyers arguing the case to avoid disclosing information.
The hearing offers attorneys from the U.S. Department of Justice, which represents the Food and Drug Administration (FDA), and the drug’s maker, Danco Laboratories, an opportunity to make arguments in favor of continued federal approval.
The lawsuit was filed by the Alliance Defending Freedom, which seeks to restrict the rights of LGBTQ+ people, expand Christian practices in public schools and ban abortion.
Observers said Kacsmaryk’s decision to move the hearing to the public schedule was highly problematic because the case could affect 40 million US women.
“With an issue this controversial, you want as much access as possible,” said Carl Tobias, law professor at the University of Richmond.
“There is some tension when there are very real security concerns, but the judiciary should tolerate that too.
“It’s not surprising that people want as much access as possible without being a danger to someone who might also want to watch the proceedings, but it’s certainly worrying when the judge wants lawyers to be quiet.
“We want people to hear what he criticizes, what questions he asks, how persuasive the arguments are, and for maximum transparency and openness in federal court proceedings.”
The case is considered the most momentous since a conservative-dominated Supreme Court with three Trump picks ended abortion rights with the Dobbs ruling last year and threw the issue back to states.
The Post said Kacsmaryk told lawyers he wanted to delay the hearing’s release because of threats from court staff and himself and his family.
Kacsmaryk has led cases challenging Biden administration policies on immigration, LGBTQ+ rights and access to abortion, but none have been as controversial as the case over mifepristone, which the FDA approved in 2000.
The lawsuit argues that the FDA acted wrongly, that the government ignored alleged harmful side effects, and that the court should order the regulator to reverse its decision.
Julie Marie Blake, an attorney for the Alliance Defending Freedom, recently told CBS that the FDA has “completely failed in its responsibility to protect women and girls.”
However, regulators have repeatedly found two-stage medical abortion, a combination of mifepristone and misoprostol, to be safe.
Doctors and health officials have argued in court filings that reversing the FDA’s approval of mifepristone would cause “profound and irreparable harm” to women and that the drug has “an exceptionally low complication rate.”
Reproductive rights advocates say the drug’s withdrawal would have a significant impact on access to abortion, including in states that protect abortion rights.
The debate has become heated. This month, national pharmacy chain Walgreens said it would not be distributing the drug in 21 states where Republican attorneys general have threatened legal action over its distribution.
Walgreens said it plans to distribute mifepristone in all jurisdictions where it is legal.
“Once we are FDA certified, we will be distributing this drug in accordance with federal and state laws,” the company said.
California said its public health system will cut ties with the chain.
“California will not do business with Walgreens — or any company that ducks extremists and puts women’s lives at risk,” Gov. Gavin Newsom said. said on Twitter.
Illinois Governor Jay Pritzker also condemned the decision.
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“Women across the country are being denied the right to access healthcare to which they are legally entitled because of this horrific corporate decision,” he said called.
“Walgreens need to reconsider this policy. To all other pharmacy providers, we stand by your side to provide this life-saving care.”
Pritzker said he met with Walgreens chief executive Roz Brewer to “express his deep concern about her position and urge her to reconsider her stance.”
But Walgreens wrote to the 21 Republican attorneys general to reassure them that it would not distribute the drug in their states.
“We intend to be a certified dispensary and will only distribute mifepristone in those jurisdictions where it is legally and operationally feasible,” said Fraser Engerman, senior director of external relations at Walgreens, in a statement.