Emergency Pod: Explaining the Chaos of the Recent Mifepristone Rulings

On Friday, April 8, 2023, Judge Matthew Kacsmaryk issued an unprecedented ruling out of Texas that has the ability to impact medication abortion access nationwide. Mark Joseph Stern, senior writer at Slate covering courts and the law, sits down to talk to us about the recent ruling on mifepristone, what the FDA can do, and what this currently means for medication abortion access in the U.S.

The Alliance for Hippocratic Medicine v. The FDA, out of the northern district of Texas, featured anti-abortion advocates arguing against the safety and efficacy of mifepristone (one of two drugs used in a medication abortion) despite FDA approval 2000 and 100+ studies proving it’s safety and efficacy since. The case was overseen by Judge Matthew Kacsmaryk, who has a vast history of anti-LGBTQ+, anti-reproductive health and rights rulings, including blocking contraceptive access for Texas teens under the Title X program on the grounds of parental religious objection. For a deep-dive into the case itself, you can find more information in our recent podcast episode.

Never before has a federal judge claimed the authority to revoke or suspend the FDA’s approval for a drug. This ruling has also positioned the pharmaceutical industry to become much more involved in conversations surrounding abortion rights, due to their recognition of the threat at the core of this ruling—that endless cases could attempt to block medications on the hypothetical grounds that they could harm somebody else’s patient in the future. This precedent undoubtedly threatens gender-affirming medications and other medications, as well.

The decision included a number of anti-science, anti-medicine rhetoric to justify the ruling. The complication rate of medication abortion is incredibly low, and the serious complication rate is near zero. Yet Judge Kacsmaryk cited a “study” funded by an anti-abortion, far-right institute claiming mifepristone causes harm to patients. Judge Kacsmaryk used language rooted in “fetal personhood,” throughout the ruling. In addition, Judge Kacsmaryk referenced the Comstock Act—an antiquated, Victorian-era law that banned the mailing of “sexual materials, birth control, or abortion-causing drugs” and is very carefully applied to avoid unconstitutionality –in the ruling to support his claims.   

Judge Thomas Rice’s ruling out of Washington state ruled that the FDA continue allowing mifepristone in the 17 states and D.C. which brought the case, leading to a stay on the FDA’s ability to alter mifepristone’s status while deliberation occurred, and resulting in a preemptive measure intended to conflict with Kacsmaryk’s decision. The FDA is now under two competing court orders: one that requires them to suspend and revoke mifepristone around the country and another that directs them to provide and protect mifepristone access in the 17 states and D.C. party to the lawsuit. The FDA does have enforcement discretion, allowing the agency to decide if, how, and when to enforce decisions on various drugs. Even if Judge Kacsmaryk’s stay goes into effect, it may not have to necessarily mean that the FDA has to comply.

Links from this episode

Mark Joseph Stern on Twitter
Mark Joseph Stern on Slate
AidAccess.org
The Lawless Ruling Against the Abortion Pill Has Already Prompted a Constitutional Crisis
Tweet thread by Dr. Daniel Grossman on anti-science in the mifepristone ruling
Plan C
Abortionfinder.org
Ineedana.com

Take Action

Transcript

Jennie: Welcome to rePROs Fight Back, a podcast where we explore all things reproductive health, rights and justice. I'm your host, Jennie Wetter, and I'll be helping you stay informed around issues like birth control, abortion, sex education and LGBTQ issues and much, much more-- giving you the tools you need to take action and fight back. Okay, let's dive in.

Read More

Jennie: Welcome to this week's episode of rePROs Fight Back. I'm your host, Jennie Wetter, and my pronouns are she/her. So y'all, I'm gonna keep the intro really short this week because we wanna get to the emergency episode, but it's also really important that we talk about this week, which is the sixth annual Black Maternal Health Week. And it is so important that we are talking about these issues. We already know that the maternal health crisis is a huge crisis in the US but we also need to remember that the maternal mortality rate for Black women is three times the rate for white women in the United States. And there are multiple factors that are contributing to these disparities, such as a lower quality of healthcare, structural racism, implicit bias from healthcare providers and underlying chronic conditions. It is so important that we are having this conversation this week and raising it up in any way we can. And there is great conversation that will be happening on social media all week. So make sure to check it out. Um, you can check out hashtags, #BlackMamasMatter, or #BlackMaternalHealthWeek, also #ReproJustice or also #BMHW23. Make sure you are following those conversations and listening to Black women and um, providers and amplifying those takes and doing what you can to take action. This is a really important week of action. Please, please, please make sure you are as involved as you can be. Alright, with that, let's turn to this week's emergency interview. I, uh, y’all, you have no idea how excited for this week's conversation I am. I have Mark Joseph Stern with Slate on to talk about all of the things that, all of the stuff that happened on Friday around mifepristone. Um, and if you aren't familiar with Mark Joseph Stern, you should definitely check out his writing on Slate. He is definitely one of my go-to writers to check out when there are things happening around the courts and repro or LGBTQ rights. Uh, trust me, uh, he is one of those people I turn to without a doubt, every time when I need to understand what is happening… a trusted source for me. So I'm so excited to have him on the podcast to talk about everything that, what happened. So with that, let's turn to my conversation with Mark.

Jennie: Uh, Mark, before we get started, can you introduce yourself and include your pronouns?

Mark: Hi, I am Mark Joseph Stern. I'm a senior writer for Slate covering courts and the law. I have one dog and three birds and I am he, him, his. Thank you so much for having me on.

Jennie: Um, I am so excited to have you here to break down the utter chaos that was Friday.

Mark: It was extremely chaotic. I was actually out to dinner with my husband when the decision came down and the food was just being served to our table. So I had to sit on my phone rudely for 10 minutes and then box it up and race home in terrible traffic. It was not great, but, you know, I mean…

Jennie: It wasn’t ever gonna be anything else right? Was never not gonna drop it on a Friday night.

Mark: Yeah. I mean, what, how many gifts can Judge Kacsmaryk give us? You know, like the lawlessness isn't enough. He also has to schedule everything in the worst possible way. I think he wanted to get it out before Easter weekend and mission accomplished.

Jennie: Okay. I guess let's start with the terrible, so the Texas ruling, what the hell happened?

Mark: I mean, like where to start? Um, by my count, there are at least like 12 discreet reasons why this decision is wrong, just as a matter of law, just like obviously incorrect. Um, and I think one of the places that's, that's best, uh, zeroed in on here, and a good place to start is this issue of standing. Um, because, you know, like it's 2023, these, these plaintiffs are in a federal court asking for the suspension of a drug mifepristone that was approved by the FDA in 2000, in the year 2000, um, 23 years ago for those who struggle with math. And so like one of the big hurdles that the plaintiffs had was how to explain why they had standing to sue, uh, why they were injured by this approval that happened 23 years ago and why they waited 23 years to bring a claim in the first place. And what they said was this: so they couldn't find any women who claimed to have been harmed by mifepristone, which I don't know if that would've worked, but it was like better than the theory that they, they concocted. Instead, they brought forth these doctors and a doctor's association that was formed specifically for the purpose of this litigation in the district where Judge Kacsmaryk sits so that he would have jurisdiction. And they said, “look, we think we may one day treat a patient who is prescribed mifepristone by someone else who then has a negative reaction and comes to our practice for treatment. And thus we are injured by the FDA's approval of mife 23 years ago because we, we might treat these hypothetical women and that is sufficient to establish standing.” Look, that is emphatically not enough to establish standing. That is a hereto for unheard of rule. It is insane because the Supreme Court has said over and over again that you have to have a personal and particularized and concrete injury. You have to be harmed—you, not a third party. And you can't just stack hypothetical upon hypothetical and create some causal chain that may eventually lead to you experiencing an injury. It has to be imminent or have already happened. But these doctors just said, “well, it might happen one day. So we have standing to sue” and Judge Kacsmaryk agreed and granted them standing on those grounds. And I think like in some ways this may be oddly enough, because this is kind of technical, people don't often think about standing. This is like the biggest crazy red flag about the decision. And here's why. If Judge Kacsmaryk is correct, then it means that any doctor in this country can sue the FDA for approving any drug that might harm a patient of theirs if prescribed by someone else, by another doctor, and they could walk into court and demand its suspension nationwide no matter when it was approved. And to be super clear, there is a six year statute of limitations on when you can file these challenges. Again, mifepristone was approved in 2000, it's 2023. Kacsmaryk just suspended the statute of limitations with no real explanation. He said, “well, they really, really need me to suspend it so I can roll for them, so I'm gonna do it.” And that means that for instance, one doctor is an anti-vaxxer, hates the COVID vaccine, goes to judge Kacsmaryk’s court and says, “Hey, I might one day treat a patient who was given the COVID vaccine by someone else and had a side effect that led her into my office. So you need to issue a nationwide block on the COVID vaccine according to this ruling.” It would be perfectly within a judge's power to do that. And I think that's like obviously a red flag because it has no limiting principle. It's obviously a red flag because it's totally unprecedented. Never before has a federal judge claimed the authority to revoke or suspend the FDA's approval for a drug. And it has gotten the pharmaceutical industry way more involved in the matter of abortion than it has ever been before. For years, the pharma industry has tried to stay away from abortion. They've seen what happens when the American Medical Association and other groups got involved. They get smeared by Republicans, they get attacked. Pharma said, “we don't wanna touch it.” You know, there were only two companies that even manufactured mifepristone and now the entire pharmaceutical industry is jumping in because they recognize that this decision is an existential threat to their ability to do anything because it would, would lead to an endless and cascading series of nationwide orders blocking various drugs on the totally hypothetical grounds that they might injure somebody else's patient.

Jennie: Oh my God, that's so much already. And it's like, like one tiny part of it. And I think the other thing that like my brain immediately jumped to, so like was starting to scream of red flags of thinking like how this is gonna impact the trans community and gender affirming care, which is like the next big target that's obviously coming after abortion. And like I could just see them going after those drugs.

MarK: A hundred percent. And um, you know, there's again, because there's no limiting principle, it's very easy to see somebody else walking into Judge Kacsmaryk’s courtroom and saying, well, you know, I might one day treat a patient who had gender affirming care as a minor and now regrets it or experiences some kind of side effect and wants it to be reversed or detransition or whatever. It hasn't happened, but it might happen. And demand a nationwide block on the prescription of any drugs that provide gender affirming care, in theory, even a nationwide block on the provision of any kind of gender affirming care. I mean, this decision is so broad that it would really allow the issue of a nationwide injunction against any abortion period, on the theory that it might hurt somebody else's patient. So I think yes, this is a way to open the door to anti-trans groups, anti-vax groups, anti-woman groups, anti-gay groups, everybody on the fringe right, to step in and get judges to do their handy work. And that's why I really would love to see this case thrown out on standing merits. Like I think courts should address all of it and say it's wrong, top to bottom. But I would love to see a really strong decision saying that this standing theory is ridiculous because otherwise it's gonna keep freaking happening. People are gonna keep walking into Judge Kacsmaryk’s courtroom asking for this crazy stuff. And look, he has crossed the Rubicon. It is now very clear that he will give plaintiffs anything they want. He will manipulate the law, he will twist the facts, he will do whatever he needs to, to issue a decision in their favor. And the only tool that higher courts have right now at their disposal is to limit his power by saying, you cannot even hear or entertain these kinds of lawsuits.

Jennie: Okay, I was prepared for it to be bad. Right? Like, I, I was real…I, you knew there was no chance he was like, gonna decide in our favor. Like I, you just, it wasn't gonna happen. But I just felt like in some ways it was like worse than I expected and like shame on me for like not seeing some of it coming, but like the very much use of, um, personhood language throughout the decision. Um, I should've seen it coming and like, but I was a little surprised by like how far some of it went and some of the stuff around Comstock as well.

Mark: Uh, yeah. So we can, we can pick those apart. But first yeah, I mean before we even get to personhood, like one of the wacky things about this decision is how far Kacsmaryk goes outside of the settled science, the settled medicine, even outside the record, to justify some of the crazy moves that he makes. So just to give one example, you know, his standing theory is rooted in the principle that people are harmed by medication abortion in the first place. Well actually it's safer than Tylenol, it's safer than Viagra, it's safer than antibiotics, it's safer than insulin. The complication rate is incredibly low. The serious complication rate is close to nil. Um, and that's why the plaintiffs were not able to bring any actual women into court or tell any true stories about mifepristone harming people. It doesn't really happen. And so what he did instead was he cited a “study” that was conducted by the Lozier Institute, which is the super far right anti-abortion group, where basically they looked at anonymous posts on a website about abortion regret and did a word search among this handful of anonymous posts. And through their word search felt that many, many women regretted their mifepristone abortions and felt that they created side effects that they did not want. I mean, obviously a pretty self-selecting group since they're going to like, iregretmyabortion.org or whatever. But even more so than that could have been the same person posting over and over again. Absolutely no verification there. And that is a study that Kacsmaryk cited while ignoring 100 plus actual medical studies showing how safe this drug is. But moving beyond that, I think the personhood issue slots right into this category because, you know, personhood for fetuses is so, so-called fetal personhood, it's always been the end goal of the anti-abortion movement. Um, the, the more candid members of the movement don't deny that. And what Judge Kacsmaryk did in his decision was cites a few prominent, uh, supporters of fetal personhood to basically say that it's law already, to basically establish that the law and the Constitution treat fetuses as full persons with equal protection and due process rights. Um, and does so just by citing this totally off the wall amicus brief filed in the Dobbs case by these two very loony professors who are on the far, far, far fringe of, they are not anywhere near the mainstream of legal thought, I'll put it that way. But Kacsmaryk cites them as though they are speaking to a consensus that exists that fetus are persons who have rights and actually leverages that false assertion to justify acting so broadly on a nationwide basis by saying that the fetus of women that exist today and will exist soon, that would be terminated, that they have a legal interest in blocking mifepristone. And that is like, I mean, 10 steps beyond where the Supreme Court went in Dobbs, I hate to even give him any credit, but it's the kind of thing that Kavanaugh said that courts shouldn't do in his separate opinion in Dobbs. Like it really goes way further than the court did. There are probably three votes for that on the court, maybe four, but I really don't think there are five. And that is another reason why like the extremism of this opinion, the bizzarro citations, the appeal to these crazy authorities that have no real authority, the strident, partisan tone, all of that is gonna get Kacsmaryk applause in Amarillo, but it is going to turn off a number of Supreme Court justices who fancy themselves as real judges rather than just activists and hacks and robes. And I think it will ultimately work against his, his goals here.

Jennie: Yeah, there's just, again, that ruling was a mess from top to bottom, I feel like.

Mark: Well, I mean we could like keep going through the reasons why. I don't know if you wanna…

Jennie: Is there any other big flag before we maybe talk about Washington?

Mark: Uh, yeah, just before, before we get to Washington, because I think Washington is obviously like extremely important here. Um, I wanna, I wanna just talk about a few other unscientific things. So we talked about like abortion regret. This is a theme that runs throughout the decision that allegedly women are going to regret their abortions. And so he as a, as a judge has to step in and protect them from making those decisions.

Jennie: So freaking patronizing.

Mark: Incredibly paternalistic and I think really offensive. And then to the, to the Comstock Act issue which you, which you noted, you know, this is the definition of a zombie law. The Comstock Act was this crazy Victorian era, in 19th century law that originally banned the mailing of any kind of “sexual materials, uh, birth control or abortion causing drugs.” Um, super broad, has been partially repealed and interpreted by the courts very narrowly to avoid serious problems of unconstitutionality, including, you know, the very brazen First Amendment issues here. Like the whole point of the law first and foremost wasn't just to target reproductive rights, it was to stop the free flow of information. Um, and Judge Kacsmaryk uses the law, leverages the law to claim that actually like federal law already essentially outlaws abortion drugs. And that the FDA, by allowing doctors and prescribers, uh, to mail abortion drugs, is allowing for a federal felony offense that could put all of these people in prison for years. That is largely irrelevant to most of his analysis. What it really is, is a warning shot, right? It is an effort to tell doctors across the country, I am ready to hand down prison sentences to you, I am ready to start throwing you people in jail if you follow FDA guidance that expressly allows you to mail medication abortion. Because I am reviving this zombie law that no one has read this way for more than a hundred years to ban what the federal government currently approves. And I think that's also something that could work against him in court that like, you know, it was irrelevant. It was just a screed tacked on to a polemic. And I think it's going to raise some eyebrows about why this judge is talking about fetal personhood and federal felonies. He's clearly not gonna stop with medication abortion if he's allowed to continue here. Like he's got his eye on a much bigger prize. And again, you know, if we take the Supreme Court at its word in Dobbs, if we take Kavanaugh at his word in Dobbs, which is a huge if, if that, you know, we can never rely on this court and certainly not Brett Kavanaugh, anytime a guy named Brett is protecting your rights, he should be very concerned. But it really just goes way further than the court wanted to in that case. And I think that the justices aren't ready for that step and they're aware of the extreme blowback that would happen.

Jennie: I think the only other thing I would raise with that Comstock part is like this case was explicitly about about mifepristone, but like when he expands it in, like focuses on Comstock, that would also impact the what misoprostol, which could be the, would be the alternative of right now if, if abortion is banned, providers are ready to go to the misoprostol only regimen, which again, incredibly safe, effective, World Health Organization approved, like very safe alternative to the mife-miso mix. But this Comstock part made me like flagged that, oh, he's coming for both.

Mark: Totally because, you know, all of these providers and blue states said like, if Kacsmaryk does this and it takes effect, we will immediately switch to miso-only abortions and they'll still be safe and effective. Which is true, there is a slightly higher complication rate, but nothing to worry about in general. Um, but you know, the, the, the gist of his Comstock analysis is, “oh don't you dare because if I ban mife and you go to miso-only abortions, I'm gonna be throwing you in jail and you are just no longer allowed to prescribe abortion drugs at all.” That is the upshot of his decision, which actually goes even further beyond what the plaintiffs asked for.

Jennie: Which again, shocking. Ok, let's turn to the like kinda good news. So what happened in the Washington decision or what was it? I that was the one that wasn't talked about as much. So people may not be as familiar with like what was coming.

Mark: So the Washington decision was, I think we should like just put cards on the table, like it was dressed up as a true controversy, as a true fight between these 18, well 17 blue states and the District of Columbia versus the FDA. But what it really was, was a, a preemptive measure to try to conflict with Kacsmaryk ‘s decision, nullify or push back on or limit the scope of Kacsmaryk’s decision by creating competing court orders. I mean that's what was really going on here. And it's not a coincidence that the judge in that case Thomas Rice, uh, oh, sorry, I think it's Matthew Rice. Um, lemme just look that up because I wanna make sure I get it right. It's Thomas Rice, Tommy, we'll call him Tommy Rice. Um, Thomas Rice decided that he wanted to hear the case and then issue this decision that conflicted with Kacsmaryk 20 minutes after that decision came down. So what was this case? Well, ostensibly these 17 states in the District of Columbia, I'll just say plaintiff states, they said, “look, we like that mifepristone is broadly available now we like that the FDA has allowed it to be prescribed without a visit to the doctor. We like that the FDA has been, uh, allowing it to be mailed, um, without in-person handoffs. But we still think that the, the restrictions on mife are too onerous to be justified. Specifically the FDA's ongoing restriction that pharmacies get this very specific and burdensome certification before they are allowed to dispense mife.” Um, and so the plaintiff state said, “you know, we think that is arbitrary and capricious. We think that the certification requirement is totally bogus.” They went to Thomas Rice's courtroom in Washington and sued to, uh, get him to suspend the certification requirement so that any pharmacy basically could, uh, could, could, could, uh, hand out mifepristone with a prescription of course. Um, again, underlying all of this was the knowledge of Judge Kacsmaryk’s suit. Everybody knew what was going on in Texas. And 20 minutes after Judge Kacsmaryk’s decision, the judge in this case, Thomas Rice, he comes out with this very interesting order where he says, “look, I think that the plaintiffs are probably right. I'm going to hold further hearings and like adjudicate this case on the merits. But right now I am issuing an injunction that prohibits the FDA from altering the status or availability of mifepristone in the plaintiff states 18 in total.” And so as we speak today, and this may change soon, but as we speak the FDA is under competing court orders that are mutually exclusive, one of which requires it to effectively suspend or revoke mife around the country in all 50 states and five territories. Another of which directs the federal government and the FDA to continue providing and in fact protecting access to mifepristone in 17 states in the District of Columbia. The FDA cannot comply with both orders at once. It is under, uh, a lot of pressure from both sides. I think because the FDA supports medicine-based science, science-based medicine, um, it probably wants to follow the Washington order but it just doesn't want to break the law. And so it is very much stuck in a bind that's gonna force the higher courts to step in here and figure out what's what.

Jennie: Okay, so that all happened Friday. I guess the big question is, this is Tuesday when we're recording this cuz I think everything's happening so fast, like the timestamp matters. This is Tuesday early afternoon. What's next? Like, what can we expect this week? Cause I know there's a lot that we can expect this week.

Mark: So Right. So it's Tuesday early afternoon eastern daylight time, uh, by midnight tonight, The, uh, plaintiffs in the mife case in Texas that, let's just call them the Bad Guys—Alliance Defending Freedom, Erin Hawley, Josh Hawley's wife, the bad guys. In short, they are on the clock because the administration appealed the, the decision on Monday and the Fifth Circuit stepped in and said, all right, well by Tuesday midnight, the plaintiffs have to respond. So the plaintiffs in that case, the bad guys, uh, are working on their brief right now, figuring out like how they're gonna respond to this efforts to halt the decision to issue what's called an emergency stay, um, that will allow the, uh, continued approval and dispensation of mifepristone where it is legal under state law. Um, that's what's happening in Texas. We'll see what happens. Um, it all depends on which panel of judges hears this, this emergency stay application. The Fifth Circuit is mostly crazy. There are some moderate Republicans and a handful of Democrats just going to like, use this moment to say there's currently a vacancy on the Fifth Circuit that has sat vacant for many, many months. And the Biden administration has not nominated anyone to that seat, which is really the administration's only tool for moderating the Fifth Circuit. So like maybe the number one takeaway from all this should be that Biden needs to freaking nominate somebody to the Fifth Circuit so that the court could become a little less crazy because if he had already, that person could be sitting on this case instead of a nutso Trump nominee. But setting all of that aside, everybody's on the clock. We'll see what happens in Washington. It's a little bit different. So the FDA has come in in Washington and basically asked for what they call a motion for clarification. And they've said to Judge Thomas Rice, “hi, we don't know what to do. We're under competing court orders. We want you to clarify whether we are really obligated and to what extent we are really obligated to protect access to mifepristone in these plaintiff states.” Which is kind of a dodge. I don't think I really like that move, but I understand it because I think they're getting ready for the possibility that they will be under these mutually exclusive court orders. And if they have to choose one and they choose the Washington court order, they want to have an opinion that expressly says, “you must follow this.” So that they can wave that around. If like, I don't know, Greg Abbott sends some crazy Texas sheriffs to try to arrest like the FDA's leadership, they can say, “we have a court order that is requiring us to do this, and nobody can argue that we aren't complying with at least one order, even if that means defying another.”

Jennie: Yeah. And I feel like that leads into some of the conversation we've seen around, that the FDA holds the authority here and they don't have to necessarily implement this Texas decision. And I've seen a lot of wordsmithing around, you can't, not saying ignore the Texas decision, but what can the FDA do?

Mark: So the FDA has a, a lot of moves here. Um, I mean, first of all, I would just say like this has never happened before, right? A judge has never claimed the power to revoke the FDA's approval of a drug or suspend the FDA's approval of a drug. This is totally novel territory. I mean, we just have to see what happens. But what we do know is that the FDA has enforcement discretion, um, to decide how and when and whether to enforce its decisions on various drugs. And there is a very strong argument that even if Kacsmaryk’s decision takes effect and the FDA is under a court order to suspend approval of mife, that doesn't actually have to mean anything in the real world. The FDA can say, “okay, like we're, we're signing a slip of paper that says because of this order, we're suspending approval of mifepristone and then just not do anything else.” And it's not like mifepristone is mailed out from a secret chamber in the FDA's headquarters. Like, everything will continue as normal in states where this medication is legal, it's gonna continue, people will continue prescribing and taking it, and the FDA can just say, look, we're using our enforcement discretion not to enforce the fact that this drug is technically not approved. And I think what would happen then is the plaintiffs would go back to Kacsmaryk’s courtroom and say, “we'll, issue an order forcing them to do it.” I mean, that would also be unprecedented. I'm sure he would do it. He's a loony tune. He's insanely, he's completely lawless. I mean, we, he's one of the worst, if not the worst judges in the country right now. And one of the worst judges ever in history, he barely pretends to be a judge. Um, but you know, even then, like there's, they don't control the FDA, like Judge Kacsmaryk does not control the federal government. He does not sit in the executive branch. He does not have any control over HHS, the FDA, any of these agencies that are in charge. And he cannot singlehandedly go to every like doctor and pharmacy that's providing mifepristone and like stop them from doing it. So I do think, and like I'll say, I, I have had some conversations with some decision makers in the government about this and they have said like, “we really hope that civil society and like the medical establishment does what they know is right here rather than caving to Kacsmaryk’s decisions. Because we can't actually say we're ignoring this decision. We can't say we're choosing to violate it, but we can say that we're using our enforcement discretion. And if we do that, then individuals who are on the good side of this fight need to understand that it's time for them to do their part and continue prescribing mifepristone as if nothing has changed.”

Jennie: Yeah, I think that's also really important right now, again, on Tuesday when we're talking about this is that the, um, Kacsmaryk’s order is stayed for seven days. So if you have an appointment or, or anything like that, please keep your appointment. Um, mife is still readily available in in states where abortion is legal.

Mark: And no matter where you live, you can go to aid access.org and you'll have mife mailed to your address safely and confidentially, even if you live in the reddest of red counties in Texas. Greg Abbott, Ken Paxton, I hope you're listening to this, everybody can go to aid access.org and get the medication that they need.

Jennie: Which is right, which is why the antis really hate medication abortion. Like, you can get it to your door. They can't like protest at a clinic to stop you getting at me and, they can, but like once, now that we have medication abortion, it's more, in theory more easily accessible to people and so kinda have to fight harder to get it taken away.

Mark: That's why the antis are proposing this idea of measuring the water supply of different towns in places like Texas to see if they can detect mife and begging sheriffs to basically start going door to door and searching houses and testing individuals for traces of mifepristone. And I think yes, that's one reason why the antis hate it. Like it's so hard to detect, it's so hard to stop. But I also think there's like a very basic aspect of this that's just misogynistic control over women's bodies, right? Like that the, the fact that women and non-binary people and trans people, all people who can get pregnant, I'm just using the umbrella term, the fact that they can go online or go to a Zoom with their doctor and get this delivered to their door and have total autonomy and privacy that blows up the anti's heads. They cannot imagine it. They hate it. They wanna be able to scream at them on the sidewalks. They wanna be able to barricade the doors, they wanna be able to do everything in their power to stop this. But because of the, the fact that it's just a handful of pills, they can't, and that drives them crazy. It makes them lose their minds because they spent so many years exerting severe control over people's bodies when procedural abortion was the number one way to terminate a pregnancy. And now that nearly 60% of the country is using medication, they have lost that control and they know it.

Jennie: Okay, I feel like I talked to you about this forever, but respectful of your time, let's not do that. Um, but I always like to end the interviews with, with actions. So like I know with this is the court decision, so it's a little harder to, uh, say what my audience can do, but are there actions my audience should be thinking about right now that they could take?

Mark: So I mean, first of all, I think that people need to hear about this decision and have it explained. If you've listened to this whole episode, I promise you are more than capable of explaining the, the basics here. Um, and like, you know, read the decision, it's not that long. It's completely off the wall. Um, get a sense of how crazy it is. Read the parts about where he ignores 100 plus scientific studies saying if a person is safe and then pulling random, anonymous blog posts to say it's fake, uh, to, to say it's dangerous. Um, and like arm yourself with that knowledge and talk to your friends and family, talk to your colleagues, your neighbors, like get people activated about the fact that a single federal judge has claimed the authority to essentially ban this drug nationwide even though it's not an authority he has or one that he can really carry out. Um, talk to your elected, officials talk to your state legislators, talk to your federal legislators, get legislation protecting medication, abortion on the floor repeal formally repealing the Comstock Act so that it's not looming over these cases and, and like a kind of a loaded gun sitting on the table for people like Kacsmaryk. Um, and you know, I think there's been a lot of debate about whether people should be stockpiling medication abortion for themselves or their friends. I don't wanna incur any kind of panic here. My personal opinion is that Kacsmaryk’s decision will be blocked before it takes effect. Um, but look, if people feel like they want that protection, if they want to be able to have these medications on hand for if and when they need them, whether, whether you live in a red state or a blue state, you can go to AidAccess, right? Like you can, you can talk to your doctor if it, it'll make you feel more comfortable. Put yourself in a place where this is not like traumatizing you and on your mind all the time because we can't burn out now. It's very early in this fight. And I think that anything you can do to feel a little bit better and to know that you've still got some control here and that you can have an influence here and you can help people that is like the, the absolute best that you can do and donate to abortion funds specifically in states that neighbor red states like Texas-- New Mexico is a great one. They're having to open up a ton of new clinics to, uh, absorb all of the patients coming across the border from Texas. Fund those clinics, go to, just Google New Mexico abortion fund and there will be many at your fingertips.

Jennie: Yes. And it's fund-a-thon right now. So it is definitely a great time to donate to abortion funds. Um, Mark, thank you so much for being here. I really appreciated talking to you.

Mark: Of course. Thank you so much for having me on. I really appreciate it.

Jennie: Okay y'all, I hope you enjoyed my conversation with Mark. I had a great time talking to him about the absolute chaos that was last Friday.

Jennie: Thanks for listening everyone. And we'll see you on our next episode of RePROS Fight Back. For more information, including show notes from this episode and previous episodes, please visit our website at reprosfightback.com. You can also find us on Facebook and Twitter at RePROS Fight Back, or on Instagram at reprosfb. If you like our show, please help others find it by sharing it with your friends and subscribing, rating and reviewing us on iTunes. Thanks for listening.