Tangle - The abortion pill ruling.

Episode Date: April 11, 2023

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. 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.You can read today's podcast here, today’s “Under the Radar” story here, and today’s “Have a nice day” story here.Today’s clickables: Quick hits (2:15), Today’s story (4:20), Right’s take (8:50), Left’s take (12:55), Isaac’s take (16:55), Listener question (20:54), Under the Radar (21:08), Numbers (21:48), Have a nice day (22:29)You can subscribe to Tangle by clicking here or drop something in our tip jar by clicking here.Our podcast is written by Isaac Saul and edited by Jon Lall. Music for the podcast was produced by Diet 75. Our newsletter is edited by Bailey Saul, Sean Brady, Ari Weitzman, and produced in conjunction with Tangle’s social media manager Magdalena Bokowa, who also created our logo.--- Send in a voice message: https://podcasters.spotify.com/pod/show/tanglenews/message Hosted on Acast. See acast.com/privacy for more information.

Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight.

Interior Chinatown is streaming November 19th, only on Disney+. Chinatown is streaming November 19th, only on Disney+. From executive producer Isaac Saul, this is Tangle. Good morning, good afternoon, and good evening, and welcome to the Tangle Podcast, the place where you get views from across the political spectrum, some independent thinking without all that hysterical nonsense you find everywhere else. I'm your host, Isaac Saul, and we are back after a little vacation there for Easter and Passover. And today we are jumping right into the deep end with an edition on Mifepristone and the decision to halt its use and potentially reverse its FDA approval by a federal judge in Texas.

Before we jump in, though, we're going to start off with some of the news we missed while we were on our short break. First up, Robert F. Kennedy announced that he will run for president as a Democrat, joining self-help author Marianne Williamson in challenging President Biden. Senator Bob Casey, the Democrat from Pennsylvania, officially announced his plans to run for reelection next year. Saudi Arabia formally re-established diplomatic relations with Iran. A Maryland attorney general accused officials of covering up and failing to act in the sexual abuse of at least 600 children at the Archdiocese of Baltimore since the 1940s. The Supreme Court declined to intervene in a decision that allowed a 12-year-old transgender girl to compete in track. girl to compete in track. Separately, Supreme Court Justice Clarence Thomas acknowledged that he accepted paid vacations and gifts over two decades without disclosing them. The U.S. economy added 236,000 non-farm jobs in March, about what economists expected. It was the slowest month of

job growth since December of 2020. And 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. All right, that is it for some of the news we missed. And now we have today's quick hits. First up, 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.

Number two, a shooting at a bank in Louisville has left five people dead and eight more injured. Number three, President Biden told NBC News that he plans to run for re-election but was not prepared to formally announce yet. Number four, the mother of a six-year-old boy who shot his teacher was charged with felony child neglect. And number five, China ran military drills that simulate an attack on Taiwan in retaliation for President Tsai Ing-wen's trip to the United States. And number six, President Biden signed a resolution that ended the COVID-19 national emergency yesterday. Biden had planned to allow the national emergency to expire in May.

The Texas judge has halted the FDA's approval of mifepristone, jeopardizing access to the abortion medication. It's one of two drugs used typically to induce a medicated abortion. However, the court has stayed the applicability of the Trump appointed judge's opinion for seven days. Since the overturning of Roe v. Wade last summer, anti-abortion activists have tried numerous other strategies to curtail access to abortions. As we reported, a federal judge in Texas last night invalidated FDA approval of the most common abortion pill. I believe that the Biden administration should ignore this ruling.

I think that we, you know, the courts have the legitimacy and they rely on the legitimacy of their rulings. and they rely on the legitimacy of their rulings. On Friday, at 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 Kazmarek suspended federal approval of the drug, which first cleared the Food and Drug Administration in the year 2000. Kazmaric's ruling came in a lawsuit filed by the Alliance Defending Freedom, who was also involved in the Mississippi lawsuit that led to Roe v. Wade being overturned.

The ADF is arguing against its safety and approval, and Kazmaric, a Trump appointee in northern Texas, signed an injunction directing a reversal of the drug's approval until that lawsuit is complete. In his 67-page injunction, Kaczmarek said the FDA made a series of errors in approving the drug and that the anti-abortion 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 decision-making lightly, he said, 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. 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 Kazmarek's ruling, which amounts to a lone judge overruling long-standing FDA approval on a publicly available drug. The plaintiffs in Texas could not point to examples of a court previously intervening in longstanding drug approval, though they did note 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 Glenn 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. 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 Kaczmarek'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 misopristone were removed from the market, they would continue to use only misopristol, 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 health care 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 Javier 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. if the Biden administration would consider ignoring the ruling. In his ruling, Kazimierk 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 is saying. The right is skeptical of Kaczmarek's ruling, but also supportive of the framing of medication abortion. Some argue that the left is only upset because Kaczmarek properly frames what abortion is. Others say the legal leaps are flawed and could backfire in unforeseen ways. In The Federalist, Margo Cleveland said the left can't stand it that Judge Kaczmarek 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 Misopristol 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 the 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.

Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history, and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+. Kazmarek cited evidence that over 60% of women and girls' emergency room visits after chemical abortions are miscoded as miscarriages rather than adverse effects to mifepristone, and 77% of women who underwent a chemical abortion reported 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 Kazmarek made several legal leaps, the board said. He blows past the plaintiff's 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 effects and overwhelm the medical system from the drug or face increased medical malpractice and insurance costs if more patients suffer adverse effects. But these harms are speculative,

the board said. There's also a six-year statute of limitations to challenge FDA actions in court. Judge Kazmarek 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's Ed, 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 Miffa-Pristone case will encourage a search for judicial shortcuts. All right, that is it for the rightist saying, which brings us to 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 Kazmarek'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. Kazmarek'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. Kazmarek 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 the 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 all the time. Kazmarek'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 Kazmarek 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 FDA failed to consider the intense psychological trauma and post-traumatic stress women often experience from chemical abortion. In reality, its 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 FDA 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. Kazmierk used his standing analysis to echo anti-abortion talking points, claiming Mifepristone 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 the Supreme Court packed with a majority that could well sign off on all or some of Kazmarek's overreach. When Dobbs v. 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. Kazmarek'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. All right, that is it for the left and the rightist saying, which brings us to my take. So obviously abortion is 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 Kaczmarek 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 Kazimierczak are not just being made by liberals. Conservative writers and pundits assessing this honestly, whether they are the Wall Street Journal editorial board under today's 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 Kaczmarek 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 Kaczmarek'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 weaselly sentences like the ones published in the journal's editorial, like Judge Matthew Kaczmarek 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 argument about Kazmarek's rulings aren't wholly wrong, either. Few issues are that black and white. It's true that the mainstream press is understating the dangers of chemical abortion drugs, or at least overstating the known safety record given the changing access of those drugs in the past couple of years. The Comstock Act does give Kazimeric 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

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 actually quite confident the court, even with its conservative majority, will recognize the layered fallacies of Kazmarek's injunction and right this wrong. All right, that is it for my take. We are skipping today's reader question to keep the length of this podcast reasonable. So we're going to jump right into our under the

radar section. A trove of leaked documents revealed that the United States 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 appear 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 swaths of them. The New York Times broke the story, and there's a link to it in today's episode description. All right, next up is our numbers section.

In 2020, the percentage of all facility-based abortions that were medication abortions was 53%. In 2017, that number was just 39%. The time period for which medication abortion is safe, according to FDA guidance, is the first 10 weeks of pregnancy. The percentage of Republicans who favor laws that make it illegal to use abortion pills or receive them through the mail is 43%. The percentage of Independents who favor laws that make it illegal to use abortion pills or receive them through the mail is 21%. The percentage of Democrats who favor those laws is just 15%. All right, and last but not least, our Have a Nice Day section today. 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, and there's a link to it in today's episode description.

All right, everybody, that is it for today's podcast. It is good to be back in the saddle. I appreciate you all tuning in. And if you want to support our work, as always, please go to readtangle.com. Consider becoming a member or sign up for our newsletter if you haven't done that yet. We'll be right back here same time tomorrow. Have a good one. Peace. Our podcast is written by me, Isaac Saul, and edited by John Law. Our script is edited by Ari Weitzman, Bailey Saul, and Sean Brady. The logo for our podcast was designed by Magdalena Bukova, who's also our social media manager.

Music for the podcast was produced by Diet75. For more on Tangle, please go to readtangle.com and check out our website. Based on Charles Yu's award-winning book, Interior Chinatown follows the story of Willis Wu, a background character trapped in a police procedural who dreams about a world beyond Chinatown. When he inadvertently becomes a witness to a crime, Willis begins to unravel a criminal web, his family's buried history,

and what it feels like to be in the spotlight. Interior Chinatown is streaming November 19th, only on Disney+.