“Let’s be very clear, the health and life of women across this nation are now at risk.”
This was the immediate reaction of the Biden administration to Judge Kacsmaryk’s recent verdict, declaring the abortion drug, Mifepristone, to have been improperly approved by the FDA. The aftershock of this decision has reverberated around the US, with pro-abortionists across the nation apoplectically condemning the judgement as a right-wing effort to undermine American women’s access to the practice.
So, was this verdict a judicious intervention underpinned by the need to enforce rigorous testing standards for widely used medication? Or was it merely based on the ideological position of the judge, who sought to use his influence in the courts to promulgate anti-abortion viewpoints on a global level?
Kacsmaryk’s role as a judge is to apply the law as it is written in statutory terms, and his ruling featured a number of well-established demonstrations of the insecure foundations concerning the FDA’s approval of mifepristone. As an outside observer without a particularly hard-lined stance on abortion, the FDA’s lines of reasoning seemed spurious to me, especially with regard to its implicit categorisation of pregnancy as an illness for which the drug could provide a “therapeutic benefit.”
Many also argue that the Comstock Act was violated when the FDA granted permission for mifepristone to be delivered in the mail. As to be expected in a ruling of such seismic magnitude, it seems to me that each of Kacsmaryk’s counterpoints are meticulously substantiated by logical reasoning and well-cited legal precedent, with zero evidence of political partisanship. Yet many are still cynical.
At the centre of the suspicion is Kacsmaryk’s long-established religious right-wing stance, which pro-abortionists claim has been weaponised by the Alliance Defending Freedom (a Christian legal advocacy group) in a strategic bid to obtain the result they desired.
This sentiment is shared by President Biden, who has publicly denounced the case as part of a calculated attempt by political right-wingers to introduce an overall abortion ban for America through the back door. With the monumental overturning of Roe v Wade still fresh in the minds of pro-abortionists and anti-abortionists alike, Kacsmaryk’s recent decision has exacerbated conspiratorial allegations regarding the integrity of the judiciary.
I am in no place to comment on Kacsmaryk’s motives or intentions, but I should state that at least some political bias is inexorable amongst each and every judge; anyone who puts their faith in the chimaera of judicial neutrality is expressing an idealistic notion that borders on the delusional. District judges such as Kacsmaryk tend to be intelligent and intuitive individuals who are exceptionally well-versed in contemporary political matters and may even have backgrounds in the political arena.
We cannot possibly expect them to not sit at least somewhere on the spectrum between total impartiality and total partisanship. Whether these underlying biases translate into the courtroom is a different matter, but until there is evidence of this having happened, we should not automatically assume that judges have allowed their inevitable partiality to notably affect their decisions. Yet pro-abortionists will continue to profess Kacsmaryk’s alleged corruption as though it were some kind of apodictic reality.
Journalists such as Forbes Magazine’s Joshua Cohen attack Kacsmaryk from an alternative angle. Cohen writes in reference to Kacsmaryk’s decision, “It sets a dangerous precedent for the ability of non-scientists… to override an agency, whose remit is to analyse the safety and efficacy of therapeutics on the grounds of scientific evidence.” In other words, matters involving the approval or non-approval of therapeutic drugs are beyond the remit of the judiciary.
Those working in science are rightfully revered for their indispensable contribution to our society, but there is a point where admiration can turn into blind idolatry. This was evident during the dreaded Covid-19 times, in which the mindless aphorism of “following the science” was repeated ad nauseam by politicians and the public in general. The reality is that scientists make mistakes too – a recent example being the notion that the COVID-19 vaccine prevents transmission of the virus, which was later proven to be a fallacy. As and when harmful miscalculations arise, it is paramount that scientists are not seen as being above legal investigation. Not only is this undemocratic, but it runs the risk of errors going unnoticed and/or unpunished.
Aside from this, those advocating Cohen’s ideology seem oblivious to the fact that science itself may be subject to political influence at times. The FDA is a federal agency that receives more than half of its funding ($3.3bn) from the US government. It is dangerously naive to assume that science and politics are totally unconnected entities, or that scientists working for the government are not at all influenced by those that pay a significant proportion of their wages. As such, the claim that Kacsmaryk’s decision symbolises some kind of ‘politicisation’ of science is not only lacking in empirical evidence but reflective of an idealistic ignorance of the existing interconnections between the scientific and political spheres.
The US Justice Department has lodged an appeal against the decision to the Supreme Court, meaning the mifepristone controversy will remain under the microscope for some time to come. As events play out over the following months, I hope the narrative will shift in a direction that critiques the specific legal points of Kacsmaryk’s ruling, as opposed to attacking the judge based on unverified presumptions of malpractice. After all, is a disregard for evidence due to ideological bias not precisely what the pro-abortionists insist Kacsmaryk is guilty of? The irony is striking, to say the least.
Image credits: Hal Gatewood on Unsplash