Transcript of Abortion Pill Hearing Reveals Texas Judge Used Anti-Abortion Terms During Questioning

Photo: Senate Judiciary Committee (AP)

Judge Matthew Kacsmaryk promised Wednesday to issue his “order and opinion as soon as possible” after a hearing in the federal case that could decide the future of mifepristone, an abortion drug that has been on the market for two decades . But details of the hearing were not publicly available until Friday night, when a transcript was finally released to the media.

According to the transcript, Kacsmaryk — a conservative Trump appointee with ties to the anti-abortion industry — seemed open to arguments made by the right-wing organization Alliance Defending Freedom to limit mifepristone. In a meeting with Julie Straus Harris, a Justice Department attorney representing the Food and Drug Administration, Kacsmaryk asked about the “abortionist/patient relationship,” a common term in anti-abortion rhetoric.

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ADF senior counsel Erik Baptist told the court that “the only practical and reasonable way” forward in this case was to issue a preliminary injunction blocking the use of mifepristone nationally (or at least cancel the drug’s FDA approval). . “FDA’s illegal actions have harmed women and girls for a long time,” Baptist said. When it comes to mifepristone, this is categorically untrue.

Medical abortion is safer than penicillin and Viagra and, in the US, where maternal mortality rates are already higher than in other developed countries, it is also safer than carrying a pregnancy to term. If Kacsmaryk issues an order to — at least temporarily — ban mifepristone, it would throw chaos into the abortion care arena, where patients are already dealing with a dwindling number of safe providers and states to access care. . However, a number of providers have said they are able to switch to using misoprostol alone, which is currently used along with mifepristone in medical abortions.

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The ADF is supported by 22 Republican-led states, which filed a friendly report in favor of “reconstruction[ing] the appropriate balance of police power for states to determine how best to protect the health and welfare of their citizens,” Baptist said. Not surprisingly, this amici report is led by Mississippi, the state, the lawsuit of which led to the overturning of Roe v. Wade last year.

Straus Harris, the DOJ attorney, said FDA approval of a drug does not require the state or its citizens to use it; it just means it’s safe to use. “In this regard, it does not determine any national policy that affects their state powers. But the plaintiffs are the ones here who are trying to dictate national policy by asking this court to withdraw the agency’s determination of safety and effectiveness,” Straus Harris said.

Baptist was unable to cite a similar circumstance where an approved drug was withdrawn from the market after 20 years of effective use. In his closing remarks, Baptist blamed the FDA’s alleged “stonewalling” of the people and organizations that brought the anti-mifepristone case that brought everyone to that Amarillo courtroom. (Again, this is a lie: ADF didn’t file suit until after Roe was overturned and also chose to do so in a circuit where it would be heard by a staunchly anti-abortion judge with a penchant for statewide rulings.)

Above the whole process was the lack of transparency. Federal courts largely restrict electronic use in the courtroom — and the Amarillo courtroom that hosted Wednesday’s argument was no exception. Wednesday’s hearing was simulcast in federal court in Dallas, but there was no overflow room in the Amarillo courthouse (despite considerable interest from citizens and the press), nor was there any way for the public to listen to audio feeds of the hearing. the hearing. rather than being present in Dallas.

Kacsmaryk’s behavior in the week before the hearing exacerbated this otherwise standard ambiguity: During a call with lawyers for both sides on March 10, Kacsmaryk asked that the hearing not be placed in the public record in order to avoid “any unnecessary circus-like atmosphere.” what should be more of an appellate-style process.”

The judge said there had been “death threats and harassing phone calls and voicemails” to the court and its staff as a result of the case. “Due to limited security and personnel resources, I will request that the parties refrain from further publicizing the date of the hearing. This is not a gag order, but simply a courtesy request,” Kacsmaryk said, according to a transcript of the call published by TPM. “We want a fluid hearing with all sides heard. I think less publicity of this listening is better.”

The public learned about the upcoming hearing only because journalists noticed missing numbers in the case file. Following the fallout from that reporting and a letter from a coalition of media groups, the hearing was put on the public calendar. Court Executive Director Gabe Roth then sent a letter requesting live audio of the hearing — which was obviously not granted.

At least three abortion providers — Whole Woman’s Health, Trust Women and Hey Jane — have said they will continue with their usual two-pill medication abortion regimen (unless the FDA specifically instructs them not to this), regardless of how Kacsmaryk rules. But whether other providers will follow suit remains to be seen – as will his decision. For now we wait.

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