Apr 11, 2023

The abortion pill ruling.

The abortion pill ruling.
Photo by Maria Oswalt / Unsplash

We're back in action and jumping into the deep end.

I’m Isaac Saul, and this is Tangle: an independent, nonpartisan, subscriber-supported politics newsletter that summarizes the best arguments from across the political spectrum on the news of the day — then “my take.”

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Today's read: 12 minutes.

We're back after vacation today and we are jumping into the deep end: We'll be covering the two rulings on the abortion drug mifepristone and what they mean. We're skipping our reader question to give this story extra space.

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News we missed.

We’re back from our six-day vacation, and wanted to give you an update on the "quick hits" we missed while we were gone:

  • Robert F. Kennedy announced he will run for president as a Democrat, joining self-help author Marianne Williamson in challenging President Biden. (The run)
  • Sen. Bob Casey (D-PA) officially announced his plans to run for re-election next year. (The bid)
  • Saudi Arabia formally reestablished diplomatic relations with Iran. (The announcement)
  • A Maryland attorney general accused officials of covering up and failing to act in the sexual abuse of at least 600 children in the Archdiocese of Baltimore since the 1940s. (The accusations)
  • The Supreme Court declined to intervene in a decision that allowed a 12-year-old transgender girl to compete in track (The decision). Separately, Supreme Court Justice Clarence Thomas acknowledged he accepted paid luxury vacations and gifts for over two decades without disclosing them. (The report)
  • The U.S. economy added 236,000 nonfarm jobs in March, about what economists expected. It was the slowest month of job growth since December of 2020. (The numbers)
  • After six missiles were launched into Israel from Syria, Israel responded with airstrikes in Syria. The Israeli military also launched strikes against Lebanon and Gaza after a series of rockets were fired from Lebanon into northern Israel. (The fighting)

Quick hits.

  1. Democrat Justin Jones was unanimously reinstated to his seat in the Tennessee House four days after Republicans expelled him for leading a gun control protest on the state floor. One other Democrat was also expelled and is also expected to be voted back into the House. (The reinstatement)
  2. A shooting at a bank in Louisville left five people dead and eight more injured. (The shooting)
  3. President Biden told NBC News that he plans to run for re-election but was not prepared to formally announce yet. (The comments)
  4. The mother of a 6-year-old boy who shot his teacher was charged with felony child neglect. (The charges)
  5. China ran military drills that simulate an attack on Taiwan in retaliation for President Tsai Ing-wen’s trip to the United States. (The drills)

Today's topic.

The abortion pill. On Friday, mifepristone, the most commonly used method of abortion in the United States, was thrown into legal ambiguity after conflicting court rulings from two federal judges.

In Texas, U.S. District Judge Matthew Kacsmaryk suspended federal approval of the drug, which first cleared the Food and Drug Administration (FDA) in 2000. Kacsmaryk's ruling came in a lawsuit filed by the Alliance Defending Freedom, who was involved in the Mississippi case that led to Roe v. Wade being overturned. ADF is arguing against its safety and approval, and Kacsmaryk — a Trump appointee — signed an injunction directing a reversal of the drug's approval until that lawsuit is complete.

In his 67-page injunction, Kacsmaryk said the FDA made a series of legal errors in approving the drug, and that the antiabortion challengers were likely to succeed in their lawsuit against that approval. He gave the government seven days to appeal, which it did on Monday morning.

“The Court does not second-guess FDA’s decision-making lightly. But here, FDA acquiesced on its legitimate safety concerns—in violation of its statutory duty—based on plainly unsound reasoning and studies that did not support its conclusions,” he wrote.

Less than an hour later, U.S. District Judge Thomas O. Rice, an Obama appointee in eastern Washington, released a nearly opposite order, related to a separate lawsuit, directing the FDA not to make any changes in the availability of the drug in 17 states where Democrats are suing to protect its use.

Legal experts have said there is little precedent for Kacsmaryk's ruling, which amounts to a lone judge overruling longstanding FDA approval of a publicly available drug. The plaintiffs in Texas could not point to examples of a court previously intervening in longstanding drug approval, though they noted cases involving newer drugs to the market. Nor is there much precedent for a nearly concurrent ruling from another federal judge in a separate case that directly throws such an order into limbo. The unusual nature of the cases and the competing orders means one or both of the lawsuits could land before the Supreme Court.

“FDA is under one order that says you can do nothing and another that says in seven days I’m going to require you to vacate the approval of mifepristone,” Harvard Law School's Glen Cohen told the Associated Press.

Mifepristone is one of two drugs used for medication abortion in the United States. The other drug is misoprostol, which is also used to treat conditions like stomach ulcers. Research shows it is rare for either drug to cause serious adverse effects. Typically, mifepristone is the first pill in a two-drug medication regimen that is used in more than half of all abortions in the United States. If Kacsmaryk's ruling were upheld by a higher court, the drug would become illegal even in states where abortion is still legal.

Medical providers have said that if mifepristone were removed from the market, they would continue to use only misoprostol, which has a lower rate of effectiveness in terminating pregnancies but is commonly used alone outside the United States.

“This will not stop medication abortions from occurring in the U.S. It will simply force healthcare providers to rely on the misoprostol-only regimen, which, while still very safe, is somewhat less effective and causes more uncomfortable side effects,” Suzanne Bell, a professor at the Johns Hopkins Bloomberg School of Public Health, told The Wall Street Journal.

Some Democrats in Congress responded by calling for the Biden administration to ignore the federal court's ruling, which could send the administration into uncharted territory and set off a constitutional crisis. Health and Human Services Secretary Xavier Becerra, whose agency oversees the FDA, said "everything" was on the table and declined to answer directly if the Biden administration would consider ignoring the ruling.

In his ruling, Kacsmaryk also held the FDA's recent approval of the drug’s distribution by mail violated the 1873 Comstock Act, which was drafted to prohibit the mailing of contraceptives, lewd writing, and any instrument or substance that could be used in an abortion. The federal government has largely ignored the law since the 1930s and more recently eliminated its reference to contraceptives.

According to recent polling from PRRI, roughly 72% of Americans oppose laws that make abortion pills illegal.

Today, we're going to examine some arguments from the right and left on these rulings, then my take.

What the right is saying.

  • The right is skeptical of Kacsmaryk's ruling, but also supportive of his framing of medication abortion.
  • Some argue that the left is only upset because Kacsmaryk properly frames what abortion is.
  • Others say the legal leaps are flawed and could backfire in unforeseen ways.

In The Federalist, Margot Cleveland said "the left can't stand it" that Judge Kacsmaryk told "the truth" about unborn humans.

In his 67-page straight-talking opinion, "the Trump appointee stuck to the facts — something Americans desperately need to hear after decades of euphemistic discussions about abortion." Mifepristone "'is a synthetic steroid that blocks the hormone progesterone, halts nutrition, and ultimately starves the unborn human until death.' But 'because mifepristone alone will not always complete the abortion,' the court continued, 'the FDA mandates a two-step drug regimen: mifepristone to kill the unborn human, followed by misoprostol to induce cramping and contractions to expel the unborn human from the mother’s womb.'"

"It is understandable that abortion activists want to hide the humanity of unborn humans, but that doesn’t make the science less real: It just means girls and women who have bought the 'clump of cells' narrative will suffer when faced with the truth, which chemical 'at home abortions' force," Cleveland said. Kacsmaryk cited evidence that "'over sixty percent of women and girls’ emergency room visits after chemical abortions are miscoded as ‘miscarriages’ rather than adverse effects to mifepristone,'" and "'77 percent of women who underwent a chemical abortion reporting 'a negative change' after the at-home abortion.'"

The Wall Street Journal editorial board criticized both rulings and the continued nationalization of the abortion fight.

Judge Kacsmaryk "made several legal leaps," the board said. "He blows past the plaintiffs’ failure to show a concrete and particular injury from the FDA’s actions, which is a threshold requirement to sue in federal court. If there is no injury in fact, there is no case or controversy for courts to adjudicate." Plaintiffs claim patients could suffer adverse events and "overwhelm the medical system" because of the drug, or "face increased medical malpractice and insurance costs" if more patients suffer adverse events. "But these harms are speculative," the board said. "There is also a six-year statute of limitations to challenge FDA actions in court... Judge Kacsmaryk ruled that the FDA reopened it when it eased regulations on the drug’s dispensing in 2021. But this is a legal stretch."

While the plaintiffs "have a point" that the FDA stretched regulations to fast-track the drug, they "cherry-pick evidence on the drug’s safety and ask the judge to second-guess FDA judgments, which isn’t the role of the courts." The lawsuit filed by Democratic attorneys general is "equally flawed," as "states haven’t suffered a concrete harm from the FDA safety precautions nor exhausted the agency’s administrative process as required before bringing a lawsuit. Like the pro-life groups, they second-guess FDA judgments and make highly questionable claims that the abortion pill is safer than over-the-counter drugs like Tylenol."

In The Atlantic, pro-life activist Patrick Brown said he is worried the ruling could backfire.

The ruling will "undoubtedly galvanize efforts to expand abortion access at the state level." This will "underscore the need for the pro-life movement to recommit to the work of changing hearts and minds to render that access less desirable." Still, "the aggressive legal tactics are far from one-sided. In just the past year, abortion-rights advocates in North Dakota, Oklahoma, and South Carolina have persuaded state supreme courts to find various 'rights to abortion' in state constitutions."

"These maneuverings will require talented lawyers to take appropriate legal action to combat," Brown said. "But the pro-life movement cannot rely on legal wins to save itself from the need to make a politically convincing case that abortion is not only immoral but unnecessary." Abortion rights ballot amendments are winning clean sweeps, and "relying on wins in court battles like the mifepristone case" will "encourage a search for judicial shortcuts."

What the left is saying.

  • The left is harshly critical of the ruling, saying it is lawless and dangerous.
  • Some argue the injunction is obviously a stretch and Kascmaryk's logic is indefensible.
  • Others wonder what the Supreme Court will do when it inevitably intervenes.

In Slate, Mark Joseph Stern said the "lawless ruling" has already prompted a constitutional crisis.

Kacsmaryk’s order "marks the first time in history that a court has claimed the authority to single-handedly pull a drug from the market," a power it does not have. The order is "indefensible from top to bottom," and will go down "as one of the judiciary’s most shocking and lawless moments." His order repeats a "ridiculous and objectively false conspiracy theory" that the FDA "illegally rushed" the approval of mifepristone at the "behest of former President Bill Clinton, the pharmaceutical industry, and population control advocates."

Kacsmaryk "ignored" the statute of limitations on challenging the approval and put forward an "offensively nonsensical" theory. He claims physicians "who may treat patients who have side effects from medical abortions prescribed by someone else are sufficiently injured by mifepristone to sue... A doctor can’t sue the government for approving a drug that they claim harms somebody else; otherwise, every doctor could file an endless stream of lawsuits against every drug approval of all time. Kacsmaryk’s logic would essentially abolish the standing requirement for lawsuits against drug approvals by creating a special exception out of thin air. That is not the law."

In The New York Times, Kate Shaw said the ruling is "bad law" and the Biden administration should fight it.

At the hearing, "the plaintiffs could not identify a single case in which another federal judge had issued the sort of order" that Kacsmaryk ultimately issued. "Indeed, our legal system does not ordinarily allow a single Federal District Court judge to override an expert agency’s decades-old decision, in this case that a drug is safe and effective — in particular when that drug is as widely used and essential as mifepristone." The plaintiffs do not even have the right to be in court, "as commentators from across the political spectrum have noted, the plaintiffs lack standing, a core requirement of any lawsuit in federal court."

The opinion's conclusion "is based on several reasons that are scientifically baseless and infused with hostility to abortion, including that the F.D.A. failed to consider 'the intense psychological trauma and post-traumatic stress women often experience from chemical abortion.'" In reality, it's approval is the result of "an accountable federal agency” that is “exercising authority delegated to it by Congress” and “conducted a rigorous review process — one recognized worldwide as the gold standard. The F.D.A. concluded that mifepristone is incredibly safe, and independent research has since confirmed that it is safer, in fact, than Tylenol, penicillin and Viagra."

In The Los Angeles Times, Mary Ziegler said the ruling is a reminder that "far-right federal judges are increasingly unconstrained."

The doctors who were part of the plaintiff group "said little about the harm suffered by any patients, though standing requires a concrete injury." Kacsmaryk used his standing analysis to echo antiabortion talking points, claiming "mifespristone users were so plagued by 'shame, regret, anxiety, depression, drug abuse and suicidal thoughts' that they needed doctors they had never met to go to court on their behalf." Now, the ruling may go to a Supreme Court "packed with a majority that could well sign off on all or some of Kacsmaryk’s overreach."

"When Dobbs vs. Jackson Women’s Health Organization overturned Roe, Justice Brett M. Kavanaugh wrote a concurring opinion. In it, he promised that the court would be scrupulously neutral on abortion, treating any case on the matter with the utmost seriousness," Ziegler said. "Kacsmaryk’s ruling reads like it was written by someone already sure of a high court win. Soon enough, we will learn if that assumption is right."

My take.

Reminder: "My take" is a section where I give myself space to share my own personal opinion. If you have feedback, criticism, or compliments, don't unsubscribe. You can reply to this email and write in. You can also leave a comment.

  • Abortion is obviously a very contentious issue, and I've shared my position on it repeatedly in the past.
  • Today, though, the morality of abortion is irrelevant. This is about a legal ruling and the justification for it.
  • To that end, Kacsmaryk is wrong and has seriously overstepped.

Abortion is obviously one of the most contentious issues in America, and I have written about my ethical position on it in the past.

The simple version of my argument, if it can be simplified, is that the incredibly challenging moral question of determining where in the gradient of personhood we should give legal protections to the unborn should not be resolved unilaterally by the federal government. Guaranteeing families in the early stages of pregnancy the right to make that decision in conjunction with their doctors, without government intervention, is morally sound and in line with the views not just of Americans, but the Western world at large. This is why I am broadly supportive of abortion rights as they existed in America before the fall of Roe v. Wade.

Fortunately, today, we don't really have to engage in the contentious and fraught debate on the morality of abortion. This is about a set of legal rulings and what the Biden administration should do. It is about the judgment of a Texas justice and the implications for the law. And there, regardless of my feelings on abortion or Roe v. Wade, the argument is much less complex.

Judge Kacsmaryk is wrong.

He has overstepped, bent the law to match his activism, and opened a can of worms that both undermines the legitimacy of our courts and further pushes the envelope on what politically motivated judges are willing to do in public view.

Let me be clear: The plain contours of the argument against Kacsmaryk are not just being made by liberals. Conservative writers and pundits assessing this honestly — whether they are The Wall Street Journal editorial board (under "What the right is saying") or writers from Reason Magazine — concede the obvious: The plaintiffs don't have standing, the approval is beyond the statute of limitations to be challenged, and Kacsmaryk ignores decades of precedent on laws like the Comstock Act.

Even pro-life activist Patrick Brown said (emphasis mine) that "for a federal judge in Texas to be seen as having found a kind of legal cheat code to prevent access to abortion medication nationwide will inspire new levels of backlash." Publicly, this sentiment seems consistent, too: Less than half of Republicans support banning FDA-approved medical abortion, so I’m not entirely sure my position even puts me “on the left.”

The extremism of Kacsmaryk's ruling, and the disingenuous nature of it, are self-evident. Of course, in today's tribalized politics, it's hard to criticize your own team. So you end up with weasley sentences like the ones in the Journal's editorial: "Judge Matthew Kacsmaryk agreed but made several legal leaps," or "this is a legal stretch."

The ruling doesn’t contain stretches or leaps — it is judicial activism.

The right's arguments about Kacsmaryk's ruling aren't wholly wrong. Few issues are that black and white. It's true the mainstream press probably is understating the dangers of chemical abortion drugs, or at least overstating the known safety record, given how much more accessible the drugs have become in the last couple of years. The Comstock Act does give Kacsmaryk an opening to challenge the shipment of abortion drugs. The concurrent ruling from an Obama appointee in Washington was also politically motivated. And under no circumstances should the Biden administration ignore a court order, as some Democrats have suggested, which would be definitionally lawless and also disastrous for how the branches of the government interact in the long term.

Instead, as Stern suggested (under "What the left is saying"), the Biden administration should get this case before the Supreme Court as soon as possible. No single judge should be able to unilaterally remove a drug from the marketplace that American regulators have deemed safe, that American citizens have made clear they want, and that has enjoyed decades of legal protection. I'm quite confident the court, even with its conservative majority, will recognize the layered fallacies of Kacsmaryk's injunction and correct this wrong.

Your questions, answered.

We're skipping today's reader question to give the main topic some extra space. 

Want to have a question answered in the newsletter? You can reply to this email (it goes straight to my inbox) or fill out this form.

Under the radar.

A trove of leaked Pentagon documents reveal that the U.S. has deeply penetrated Russia's military and intelligence services, which has allowed it to guide Ukraine on pending attacks and military strategy. The documents also reveal the U.S. is spying on Ukraine's top political leaders, as well as allies in South Korea and Israel. The documents appeared to have been removed from a secure intelligence briefing, hastily photographed, and leaked online. Some sections were also doctored, though news outlets are verifying large swathes of them. The New York Times broke the story.


  • 53%. In 2020, the percentage of all facility-based abortions that were medication abortions.
  • 39%. In 2017, the percentage of all facility-based abortions that were medication abortions.
  • 10 weeks. The time period for which medication abortion is safe, according to FDA guidance.
  • 43%. The percentage of Republicans who favor laws that make it illegal to use abortion pills or receive them through the mail.
  • 21%. The percentage of independents who favor laws that make it illegal to use abortion pills or receive them through the mail.
  • 15%. The percentage of Democrats who favor laws that make it illegal to use abortion pills or receive them through the mail.

The extras.

Have a nice day.

One of the most vexing problems in America today is our high rate of opioid overdoses and drug abuse. Now high schools across the country are running with an innovative approach: recovery high schools. There are 43 such schools nationwide, which are designed specifically for students recovering from substance use disorder. One school in Denver opened as a charter school and now has more than 100 students enrolled. Recovery high schools offer on-site recovery meetings and wellness activities that are paired with a standard curriculum that includes English, math and foreign language classes. NPR has the story.

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