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Abortion pill foes’ lawyer concedes blocking FDA-approved drug years later would be unprecedented: Reports

Abortion Pill

Boxes of the drug mifepristone sit on a shelf at the West Alabama Women’s Center in Tuscaloosa, Ala., on March 16, 2022. (AP Photo/Allen G. Breed, File)

A Texas-based federal judge appointed by former President Donald Trump quietly and hastily convened a hearing on Wednesday to determine whether to ban abortion drugs nationally, in what could be a significant rollback of reproductive rights less than a year after Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade.

Advocacy groups, led by an organization going by the name Alliance for Hippocratic Medicine, filed the lawsuit late last year, challenging the Food and Drug Administration’s more than two-decade-old approval of Mifepristone in 2000. They claim that the FDA’s approval is the result of an accelerated process and assert — against the overwhelming weight of medical opinion on the subject — that the drug is unsafe.

The group’s attorney Erik Baptist reportedly gave a nod to the rationale behind the Dobb’s ruling during 90-minute oral arguments on Wednesday, in Amarillo, Texas.

Taking mifepristone from the market “would restore proper policing power to the states,” Baptist argued, according to The Associated Press. Baptist reportedly acknowledged, however, after prodding from the judge, that there’s no precedent for an order removing medication that’s been approved for decades.

Asked if he could cite any example, Baptist reportedly answered: “No, I can’t,” according to the Washington Post.

However, U.S. District Judge Matthew J. Kacsmaryk appears open to doing so anyway, the Post added.

The newspaper noted that mifepristone, when combined with a second pill, has become the most common method of abortion in the United States, a trend that has only increased since the Dobbs ruling.

The Post reported that the hearing ended after four hours, without a ruling from the judge.

In a friend-of-the-court brief, a dozen medical organizations led by the American College of Obstetricians and Gynecologists and the American Medical Association called the lawsuit’s opposition to the drug “fundamentally ideological, not scientific.”

“They seek to end the practice of medication abortion using mifepristone, encouraging the Court to upend the expert judgment of the FDA and overturn a twenty-three-year-old approval,” the medical groups wrote. “Their request is not based on rigorous scientific review and analysis but on speculation and the personal opinions of two physicians.”

The Department of Justice also opposed a ban on the drug, citing the “extraordinary delay” to challenge the long-approved medication.

“Plaintiffs raise numerous theories, including novel claims second-guessing FDA’s safety and efficacy determinations, and seek an order that would withdraw from the market a drug that has been widely available for more than two decades,” the Justice Department wrote, adding that those theories “lack merit for myriad reasons.”

U.S. District Judge Matthew J. Kacsmaryk, who previously served as deputy general counsel for the conservative Christian First Liberty Institute, gave the public a single day of notice for the high-profile and fateful hearing, for which the court only made an audio livestream available for those visiting the federal courthouse in Dallas. The live proceedings were set for Amarillo, Texas.

Democratic lawmakers sharply opposed Kacsmaryk’s appointment to the bench because of his anti-LGBT views and his opposition to contraception. He has labeled homosexuality as “disordered” and described transgender identity as a “delusion.” He has argued that the Supreme Court should never have ruled that birth control bans are unconstitutional.

The case has been called potentially the most impactful abortion access case since the Supreme Court ruling that overturned Roe v. Wade, but in the face of national interest and attention, Kacsmaryk has kept proceedings unusually quiet. He held a telephone conference without public access or notification, news of which only became public through anonymously sourced reporting by the Washington Post. News organizations and press advocacy groups opposed the unusually secretive nature of the adversarial proceedings.

“The Court’s attempt to delay notice of and, therefore, limit the ability of members of the public, including the press, to attend Wednesday’s hearing is unconstitutional, and undermines the important values served by public access to judicial proceedings and court records,” Reporters Committee for Freedom of the Press, The Washington Post, NBCUniversal, ProPublica, Texas Press Association, The Freedom of Information Foundation of Texas, The Markup, and Gannett wrote in a letter to the judge on Monday.

Only after the letter did the judge provide public notice of the proceedings. Kacsmaryk provided notice of an audio livestream — within the courthouse, not outside it — on the eve of the hearing, along with a list of restrictions on how it can be used.

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Law&Crime's managing editor Adam Klasfeld has spent more than a decade on the legal beat. Previously a reporter for Courthouse News, he has appeared as a guest on NewsNation, NBC, MSNBC, CBS's "Inside Edition," BBC, NPR, PBS, Sky News, and other networks. His reporting on the trial of Ghislaine Maxwell was featured on the Starz and Channel 4 documentary "Who Is Ghislaine Maxwell?" He is the host of Law&Crime podcast "Objections: with Adam Klasfeld."