Texas Judge Outlaws Mifepristone - Judicial Activism Roars Ahead

A federal judge in Texas recently issued a ruling that would ban mifepristone by nullifying the Food and Drug Administration’s original approval of this medicine, which occurred 23 years ago. Mifepristone is one of two drugs that are used for medical abortions.  If this decision is ultimately upheld, it would ban this FDA approved drug throughout the country. Ironically, on the very same day, another federal judge in Washington state issued a contradictory ruling that would protect mifepristone’s status as an approved medicine. 

An appellate court ruled a few days later that mifepristone's approved status remained valid, although prior restrictions on its use would be resumed.  This past Friday, the Supreme Court gave mifepristone a 5 day reprieve giving time for both sides to submit briefs days from now.  

Will the Supreme Court deliver peace in the valley?  Not at all.  We have all painfully learned since the Roe v Wade decision of 1973 that a judicial determination may not resolve a societal dispute.  Indeed, many experts and others believe that the Supremes should have delayed weighing in on abortion until the nation made some progress politically.  Roe didn’t bring the nation together on this raw and divisive issue. Instead, it became grist for both sides to dig in and demonize the other side.  In contrast, when the Court decided in 2015 that gay marriages were constitutionally protected, the nation had largely already accepted this so the Court’s decision basically ratified public sentiment rather than inflame it. Had the court issued the same gay marriage decision 20 years ago, public reaction to it would have been quite different.

More division on the way.

Though I am not an attorney, I find the Texas judge’s decision on mifepristone to be highly tendentious and problematic.  Considering the judge’s background, known views and the specific language he used in his decision,  I suspect that he prejudged the case, which is anathema to a judge’s solemn commitment to be impartial.  And I thought that political conservatives decried judicial activism!

As is so often the case, folks who support a court’s decision will praise a judge for his or her integrity, judicial modesty and wisdom.  Guess what folks say about a judge when they disagree with the outcome?  The public should not judge judges or juries based on outcomes but on the process.  Was the proceeding fair?  Was the decision based on the facts and the law?  Was competent counsel present?   A court’s responsibility is not to save jobs or save green space or save puppies.  These laudable goals should be addressed by other means.  Courts make legal determinations – they are not policy instruments.  Increasingly, folks are looking for the courts to offer remedies to many of society’s ills.  Lobby your legislators instead. 

Mifepristone was deemed to be safe and effective by the FDA over 2 decades ago.  The FDA followed all of its exhaustive protocols.  The agency is afforded wide discretion over its processes and actions, as it should.  There are so many other drugs out there, including chemotherapy agents and biologic medicines just to offer two examples, that are less safe and effective than mifepristone, but yet there is no outcry against them.  Wonder why?

The judiciary should not be interfering with medical and scientific processes that are far beyond its knowledge and purview.  If you want to make mifepristone illegal because you oppose abortion, then pass a law to accomplish this. (Of course, be prepared for a legal challenge.)  Don’t do a dishonest end run around the truth by having a judge declare that the FDA process 23 years ago was flawed.  Does anyone actually believe that the Texas plaintiffs filed this lawsuit because of alleged FDA errors decades ago?