February 16, 2023

Wyden Delivers Floor Speech Calling on President Biden and the FDA to Keep Mifepristone on the Market, Regardless of Outcome in Texas Case

“The awful reality is, from the moment this case landed in front of Judge Kacsmaryk, it’s been a rigged game all along.”

Wyden's call comes after decades of his advocacy for women to have access to abortion medication, holding the first ever congressional hearing on the basic healthcare issue

Click here to watch video of remarks. 

As Prepared for Delivery

On the first floor of the federal building in Amarillo, across the street from a grassy park and a few blocks away from the local minor league baseball stadium, is a United States District Courtroom for the Northern District of Texas. 

Presiding over that courtroom is a lifelong right-wing activist. A partisan ideologue. An anti-abortion zealot who was hand-picked by Donald Trump and the Federalist Society to feign impartiality on the bench and deliver favorable rulings on the cases his fellow right-wing ideologues funnel his way. 

His name is Judge Matthew Kacsmaryk. Confirmed in 2019 on a party-line vote. In a matter of days he will issue a ruling on a case so absurd and meritless that it did not deserve a single breath of argument in his courtroom. 

The case is the so-called Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration. If we allow it, Kacsmaryk’s ruling could deal the next devastating blow to the right to privacy in America, and the right of all women to control their own bodies. Not just in Texas, but in all 50 states. 

So this afternoon I want to talk about the dangerous, new political scheme playing out in that courtroom, what I’ll call “courtwashing.” I’ll also talk about what the president and the FDA must do when the ruling comes down. 

The suit aims to undo the FDA’s 2000 approval of a medication called mifepristone, one of two drugs used in a medication abortion. This drug is very safe and effective. It’s used in more than 50 percent of abortions nationwide. It has been on the market and used for this important treatment for three decades. Anyone who calls its safety into question is not telling the truth. 

I have a long history working on policy related to mifepristone or RU486, as it was called when I first learned about it decades ago. I was one of the first elected officials to advocate for its use in the United States. In 1990, I chaired the first ever Congressional hearing on RU486 before the House Small Business Committee. 

Back then, just like today, right-wing extremists were pulling all the stops to keep the drug from being approved. They campaigned on politics of fear, threatened lives and lied about the drug’s safety. They even once deployed a small bomb at a conference where the chemist behind RU486 was scheduled to speak. 

Their efforts worked at first. The FDA imposed an import alert on the drug that hindered research on its uses outside abortion. I fought that import alert and introduced the bill to remove the restriction. The FDA finally approved the drug in 2000. 

My advocacy around this issue and this drug has never been based on some extreme view or some political agenda. It is based in science and in fact. 

So, let’s look at the facts. Not the fiction you hear from the plaintiffs in this case. 

It is a fact that this medication is key to ensuring fundamental rights, including the right to privacy and the right to make your own reproductive choices. Medication abortions allow for women to end a pregnancy in the comfort and safety of their own homes. 

It is a fact that mifepristone has fewer complications than Tylenol. A wealth of evidence demonstrates the drug’s safety and effectiveness. 

It’s also a fact that the Republicans on the Supreme Court have said that the issue of abortion should be returned to the states. That the country should not have a one-size-fits-all policy on this subject. 

So here’s the question: How did it come to be that this one single judge in Texas is on the verge of blocking access to a drug that a duly-authorized federal agency has deemed safe for over twenty years -- and blocking it nationwide?

To answer that, let’s talk a little about the history of this issue and the flaws in this case. 

Congress long ago empowered the FDA, a body made up of scientists and clinicians, to approve or disapprove the use of new drugs — not states and certainly not activist judges. The FDA approved Mifepristone 23 years ago. For those looking to challenge that approval, well, it’s too late. The statute of limitations allows challenges to FDA procedures for only six years.

If that wasn’t clear enough, Congress solidified its approval again in 2007. As part of an amendment to the Food and Drug Act, any drug previously approved by the agency was deemed to be in compliance with new rules governing the FDA. Mifepristone is covered by that amendment made by the Legislative Branch. There is no reasonable argument to the contrary.

Nonetheless, the plaintiffs in this case want Judge Kacsmaryk to reach back through time, bust through the statute of limitations and Congressional intent, and toss out the FDA’s legal approval. 

Furthermore, the plaintiffs in this case have no standing to bring the suit in the first place. To establish standing, a plaintiff must show actual harm or injury to demonstrate a direct impact by the actions of the defendant.

The plaintiffs are extreme anti-abortion groups and doctors. Here is the ludicrous claim they’ve put forward to establish standing: They argue—defying science and fact—that some unknown future patient may take mifepristone, experience a highly unlikely side effect, and then specifically come into one of their exam rooms for treatment. 

If a standing claim that ridiculous and overly broad passes muster, then it’s time to rip up all the legal textbooks in America and start over. That would mean that anybody can wander into federal court and seek relief against anyone else based on wild, dreamt up scenarios hypothesizing that they may somehow be injured one day in the future. 

Legal logic be damned, the plaintiffs know that Judge Kacsmaryk won’t let pesky obstacles like standing or precedent get in the way of the agenda they share.

That’s because Donald Trump and conservative activists planted him on the bench in that Amarillo courtroom. They know he has spent his entire career fighting shoulder to shoulder with them against LGBTQ equality, abortion, and contraception.

He is there for the purpose of what I’ll call “courtwashing.” 

In the courtwashing scheme, it’s his role to give the appearance of judicial legitimacy to the outcomes that right-wing activists know they’re getting as soon as their cases show up on his docket. 

In the few years that Judge Kacsmaryk has been on the federal district court, he has earned the title of the most lawless judge in the country. It’s tough to earn that kind of infamy in such a short time, but his rulings have justified it.

He has issued constitutionally dubious and extraordinarily contentious opinions, has defied precedent on protecting LGBTQ employees and attacked the right to contraception by restricting minors’ access to it.

Now he has this case on access to abortion medication that is directly intertwined with the rights to privacy and choice. 

The plaintiffs who have no legitimate standing have hand picked him to hear this case that has no merit because they know what they’re getting with Judge Kacsmaryk.

They’ve gone to him for courtwashing. 

The plaintiffs want mifepristone outlawed in every state, and they’ve found a way to make that happen. 

Because of how judges in this federal district in Texas are assigned, the plaintiffs were able to use a procedural loophole and hotwire the judiciary. They could ensure Kacsmaryk was the only judge who could get the case. No shot of getting it assigned to somebody else. 

To make this more frightening, if and when Kacsmaryk tosses out the FDA approval, Americans cannot count on the appellate courts to step in and do what is right, what is constitutional. 

The appeal would land at the activist Fifth Circuit Court of Appeals. This is the same court that allowed Texas bill SB 8, effectively an abortion ban, to go into effect before the Supreme Court ruled on Dobbs. 

From there any appeal would presumably head to the very same Republican majority on the Supreme Court that just overturned Roe. The Roberts Court doesn’t even wince at revoking constitutional rights and upending decades of precedent on legal grounds that are flimsy at best.

It’s a fairly recent phenomenon that a single judge has the authority to issue a nationwide injunction. Until 1976, three-judge courts were required to enjoin federal and state laws. And even after that was no longer required, it was relatively uncommon until about a decade ago to see federal laws and policies blocked in their entirety by the ruling of just one district court judge.

It’s true that these types of injunctions have been used against both Democratic and Republican administrations. The difference is that the appellate courts, and particularly the Supreme Court, are aiding these polarization efforts -- but only for one side. 

Here are the numbers. On 41 occasions, the Trump administration asked the Supreme Court to put on hold an adverse lower-court ruling for the duration of the government’s appeal. In 28 of those cases, the Supreme Court granted the Trump administration relief.

In comparison, the Biden administration has sought emergency relief from the Supreme Court nine separate times. The Supreme Court has granted it on only two occasions. And incredibly, the Court has granted emergency relief against the Biden administration four times, something that did not happen during the lawless days of the Trump administration.

So, what does that mean for the case in Texas? Well, if and when Judge Kacsmaryk issues the ruling that he was handpicked to deliver, then the courtwashing is on. 

The Fifth Circuit, which has little respect for precedent or the authority of the other two branches of government, will almost certainly uphold his ruling. Then the Roberts Court will almost certainly leave the ruling in place through the long and arduous appellate process.  

All the while, millions will suffer grave danger. The harm that will result from this decision cannot be overstated. Cut off from the care they need, women will die. 

And while this wouldn’t be the first time a judicial decision has caused irreparable harm to others, this case is particularly egregious.

It will come from a lawless judge, picked by the litigants with no standing to bring a case that should be barred by the statute of limitations and has absolutely no merit. 

There are moments in history where Americans and their leaders must look at circumstances like this one and say, “Enough.” Not “let’s see how the appeals process plays out,” or “let’s hope Congress can fix this down the road.” Just, “Enough.”

The power of the judiciary begins and ends with its legitimacy in the eyes of the public. It does not have the military backing of the executive branch or Congress’s power of the purse. 

A judge’s rulings stand because elected leaders and citizens have agreed that abiding by them is right and necessary to uphold the rule of law. That’s part of the social contract in America. 

But the judiciary must uphold its end of the social contract too. It must follow the rule of law and earn the confidence of the American people continually, every day, every month, every year. 

Recently that confidence has eroded, and it’s no secret why. Look at the Dobbs decision overturning Roe. Look at what is happening in Texas right now. Parts of the judiciary have morphed into a mob of MAGA extremists, conspiring with and willing to do the bidding of every right-wing group or former President that appears before it, no matter the cost to life and liberty. 

The awful reality is, from the moment this case landed in front of Judge Kacsmaryk, it’s been a rigged game all along. It’s illegitimate. The case is an affront to the Constitution and to the rule of law in the United States of America. 

So here’s what must happen if and when Judge Kacsmaryk issues his nationwide injunction halting access to mifepristone. 

President Biden and the FDA must ignore it. 

Don’t give in to the courtwashing. Protect the fundamental rights and wellbeing of all women in America. 

The FDA should go on just as it has for the last 23 years since it first approved mifepristone. 

The FDA needs to keep this medication on the market without interruption regardless of what the ruling says. 

Doctors and pharmacies should go about their jobs like nothing has changed. 

American leaders who care about the right to privacy and the lives of women in this country cannot let an illegitimate ruling in this case stand. We cannot hide from this fight. Let the right-wing extremists stand up and explain why they lied when they said that Dobbs was about returning abortion law to the states. 

In the face of a courtwashing strategy whose outcome is almost certainly predetermined, we cannot simply say we’re going to let the appeals process play out and hope for the best. Too much is at stake, and this case will not be in the hands of public servants who are staying true to their oaths of office. 

Women in America must know that they’re not going to be cut off from the care they need -- the care they have a legal right to obtain. Not for one year, one month, one day. 

If that’s what the ruling would do, the answer is to ignore it, at least until there’s a final ruling on the underlying matter by the Supreme Court. 

I don’t say this lightly. In fact, I’ve never said it before.

I believe in the three branches of government and respect the role of the judicial branch. I have served for over 40 years in Congress, first in the House and for the last 27 years in the Senate. I have raised my hand and taken an oath to uphold the Constitution of the United States. I do not intend to dishonor that oath, which is why I stand here today.

This judge is not upholding the oath he took. He is not adhering to the Constitution. He is making a dangerous mockery of the rule of law. Something needs to be done about it.

This wouldn’t be the first time a political leader or elected official has called on others to ignore a court ruling. Abraham Lincoln did it after the Supreme Court issued the historically egregious Dred Scott ruling, which held that black people could never be citizens of the United States.

Lincoln called that decision erroneous. An abomination. He pointed to the partisan bias in the opinion. That it was based on assumed historical facts which were not really true. That it was one opinion that could not be considered precedent. Sound familiar?

And Lincoln’s directive in response to the case was that it is the constitutional duty of elected officials to resist unconstitutional decisions of the courts, even the Supreme Court, if those rulings would harm the nation and its people. 

These cases obviously deal with very different circumstances, and nothing compares with the horrors of slavery. Nonetheless, they do have something in common. It’s a question of the advancement of rights versus the deprivation of rights. 

The advancement of individual rights is at the core of our national character and history. This case before Judge Kacsmaryk is a rejection of that. 

It’s clearly part of an effort to backtrack on a century of progress for American women and deprive them of fundamental rights. The right to privacy. The right to control their own bodies. And stemming from that, the right to live and work and participate in American life -- fully and equally. 

That will be the outcome if the courtwashing strategy succeeds. If Judge Kacsmaryk violates his oath to deliver the outcome his fellow right-wing activists are after. If the Fifth Circuit and Supreme Court bless such a ruling as legitimate. 

As Lincoln told his fellow Americans, the Supreme Court is not the Constitution. Neither is Judge Kacsmaryk. 

The Constitution, and the rights it affords American women, are what we must defend. 

Watch a video of Wyden’s remarks here


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Nicole L'Esperance