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This seems like a weak argument given that the doctors are not the ones harmed by any supposed danger of the drug and the FDA has studied the drug’s safety extensively over the twenty years it has been used since its approval in 2000. The twenty-plus years of safe use also present a problem because the granting of a preliminary injunction requires a showing of irreparable harm and a likelihood of success on the merits of the case.
Obviously, it is hard to understand what kind of irreparable harm is so imminent that it hasn’t manifested in the last twenty years and when studies indicate the risks associated with the use of mifepristone may be lower than risks associated with such commonly prescribed drugs like penicillin and Viagra.
Kacsmaryk invokes the Comstack Act to remedy these obstacles with boot-strap reasoning that if there is a law on the books prohibiting the mailing of abortion medicines then the FDA decision to approve the medicine must be flawed. In so doing, he ignores the fact that after the Supreme Court’s landmark Dobbs abortion ruling last year overturning Roe v. Wade the Justice Department issued a memorandum specifically stating that the Comstock Act does not prohibit the mailing of such drugs as mifepristone.
“This kind of judicial supremacist attitude could potentially lead to courts dictating to the DOJ how and when it must apply a near extinct law like the Comstock Act.”
This weak legal reasoning by Judge Kacsmaryk will undoubtedly be attacked by the Department of Justice on appeal but there is reason to worry that the conservative Fifth Circuit Court of Appeals and the same conservative majority in the Supreme Court that overruled Roe v. Wade may ignore the weaknesses of Kacsmaryk’s arguments. The likelihood of SCOTUS action is greatly increased by the ruling by Washington state federal district court Judge Thomas O. Rice issued minutes after Kacsmaryk’s which took the exact opposite stance—blocking the FDA from “altering the status quo and rights as it relates to availability of Mifepristone.”
For one thing, the author of Dobbs, Justice Alito, appears to share Kacsmaryk’s fondness for resurrecting dusty laws. Recall that Alito based part of his reasoning for overruling Roe v. Wade on the opinions of disgraced 17th century jurist Matthew Hale who presided over witchcraft trials.
Even more ominous is the fact that the SCOTUS conservative majority shows little regard for deferring to the expertise of agencies like the EPA, CDC and OSHA. Instead, SCOTUS felt free to substitute its own judgment in place of that of scientists when it dismissed regulations by those agencies regarding green house gas emissions and pandemic-related eviction moratoriums and vaccine mandates. This kind of judicial supremacist attitude could potentially lead to courts dictating to the DOJ how and when it must apply a near extinct law like the Comstock Act. Once upon a time in America that would have seemed unthinkable, but no longer.
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