The Litigants Trying to Ban the Abortion Pill Have Some Truly Wild Legal Claims

[ShazzieB]

If you've been worrying about the Texas abortion pill case as I have, I think you may find this article very interesting.

https://slate.com/news-and-politics/2023/03/texas-medication-abortion-case-close-read.html

Right now, the country is waiting for District Judge Matthew Kacsmaryk to rule on a baseless case that attempts to challenge the use of mifepristone, one of two drugs used in medication abortions. The case goes after the Food and Drug Administration’s approval of the drug—which occurred more than two decades ago and was as rigorous as the process for many other drugs—and because of that, there is a fear that if this district judge rules on the side of the plaintiffs, it could affect mifepristone’s availability nationwide. (There are arguments that it might not have to, but the situation is already absurd enough to warrant plenty of attention.)

While we wait for the ruling, I decided to actually read the 113-page complaint filed by the anti-abortion group that calls itself, unscrupulously, Alliance for Hippocratic Medicine. You don’t need to understand federal jurisprudence to grasp how preposterous the case is; it is apparent in the arguments offered by the plaintiffs themselves. Below are just a few of the egregious distortions contained in AHM’s complaint, and I’ve specifically chosen some that haven’t been reported on as much in the existing coverage of this case. I think it’s worthwhile for everyone to familiarize themselves with the way these plaintiffs are attempting to argue their way into controlling health care access for the whole country, which in fact overwhelmingly supports access to abortion care.

*snip*

At this point, abortion should be legal if only because this is a democracy and the people want it to be legal. Even in very red states, most people want abortion to be legal; that extremist legislators continue to force through bills that restrict access to abortion is a clear sign they don’t actually care about what their constituents want. This challenge to mifepristone is an attempt at a backdoor nationwide ban on abortion, but it’s also, and more importantly, a flagrant challenge to the structure of our democracy.

But further, I must make the strong and righteous assertion of the reproductive justice and reproductive freedom movements, that we cannot and must not depend on government or the medical establishment to protect or enable our inherent human rights. Safe, self-managed abortion is the inalienable right of anyone who can become pregnant, regardless of what nation seeks to claim or control their body, and the ability to provide appropriate patient care is a requirement for any physician that must not be interfered with or politicized. Any attempt to use the law to constrain those rights must be diligently called out and forcefully resisted.

The part I snipped out in the middle consists of lengthy list of outrageous claims made in this lawsuit and the author's demolishment of them. I didn't even try to quote any of it, because I didn’t think I could possibly do it justice in the limited amount of text we're allowed to quote here. I highly recommend reading (or at least skimming) the whole thing, to see for yourself what kind of patently ridiculous claims these plaintiffs are making.

X-posted to Pro-Choice (Group)

[dsc]

1. the likelihood of the case ultimately succeeding at the Supreme Court is very low

due to those arguments being so lame. But, the problem is, it might work for several months or even a year. If this judge issues the ban and the 5th circuit upholds it both of which have very non trivial probabilities, then it would go to the SCOTUS shadow docket. There, it is quite conceivable that the justices will let the decision stand until they hear arguments and overturn it. Given that it is March now, the arguments might end up being scheduled in Oct of this year and decided in June of 2024. That would mean the ban would last for 15 months.

[Alexander Of Assyria]

2. The throw everything at the wall litigation is much frowned upon, but if the lucky litigant

happens upon an unqualified Christian Crusader tRump judge…the shit may stick temporarily.

[dsc]

3. luck had nothing to do with it

because of how the federal courts work in that region of Texas they got to pick their judge, who literally spent his entire career prior to his appointment working to end abortion rights.

[katmondoo]

5. How does a Judge have so much power? Enough power to affect half of the population??

[dsc]

6. in theory it makes sense that a judge can enjoin the government from enforcing

illegal laws or executive orders. And in general, when a judge abuses that power, the appeals court grants an emergency stay, and then hears the case and overturns the decision. The problem here is that the 5th circuit is filled with right wing nuts who refuse to rein in such orders and thus plaintiffs continue to seek them and judges continue to grant them. What is supposed to happen is what happened when the judge in the Trump documents case decided to make up bullshit law. There the 11th circuit stayed the worst of the order immediately (they allowed the DOJ to continue accounting for classified documents) and threw out the rest in a matter of a couple of months (which is lightening speed for appellate courts). If the 5th circuit behaved that way then this stuff would stop.

[SheltieLover]

4. Kicking for Visibility

[jmowreader]

7. Hmmm...

I pulled two of the plaintiffs' claims out of this:

301. When their patients have chemical abortions, doctors lose the opportunity to provide professional services and care for the woman and child through pregnancy, which causes harms to providers who no longer can care for their patients and bring about a successful delivery of a new life.

312. Doctors, such as [Plaintiff doctors] Dr. Jester and Dr. Delgado, serve patients as professional health care providers. They provide care to all women and unborn children, and they give them the best professional services possible. Just like all other health care providers, a hospital or practice will bill for the costs of medical services rendered. When their patients have chemical abortions, they lose the opportunity to provide professional medical care for the woman and child through pregnancy and bring about a successful delivery of a new life.

Besides the fact that these two paragraphs say essentially the same thing, it appears that their argument here is "you need to ban mifepristone because it's bad for business." We're falling into Bastiat's broken-window fallacy here.

Okay, let's analyze this one for a second. According to Bastiat (this was repeated in Henry Hazlitt's "Economics in One Lesson," the unseen lesson being that the crack epidemic has been going on far longer than we initially thought) a shopkeeper's window is broken and the townspeople rejoice because now the glazier will have work. But what we do not see is the tailor, who was going to sell the shopkeeper a new suit this evening but no longer can because the shopkeeper has to spend his money on a new window.

The flipside of this fallacy is that we are also not seeing the glazier, the insurance agent and the lawyer. Because the glazier had a sheet of glass sitting in his shop that he can now sell, the glazier will now be able to buy a suit with the profits from selling and installing the glass. Because the shopkeeper had insurance, the shopkeeper will be able to get his new window today and still have his suit money. And the lawyer, who needs a suit but had to wait until the shopkeeper got his because the tailor can only make so many at a time, can now get the clothes he needs for work. Therefore, instead of one suit being produced three will now be. Of course, we cannot ignore the carpenter who needed the glazier to make windows for the new house he was building instead of spending his time replacing a window but in this rather terse analysis of the depth of a broken window we must ignore that the glazier could put the window in then go back to his shop and finish making the carpenter's windows. There's a reason the most economically disastrous policy the US ever implemented was created by a Republican economist.

Would it not be just as logical to say that by not forcing a woman to carry to term a pregnancy that she either cannot or does not want to carry to term, other woman who wish to continue their pregnancies will be able to obtain the care that they need? "You're cheating me out of my fees by having an abortion!" seems a bit strange to me. Then again, I'm not a Trump-appointed judge.

[Freethinker65]

8. Those poor OBGYNs will have fewer patients? Most of my OBGYN visits had nothing to do with pregnancy

Birth control, Pap smears, Endometriosis, intrauterine biopsy...

WTAF. Have surgeons gone to SCOTUS because alternatives like radiation, chemotherapy, and/or physical therapy cut into their surgical fees?