An obscure federal judge in the Texas Panhandle will soon decide whether to issue a nationwide prohibition against dispensation of a widely-used abortion pill. Judge Matthew Kacsmaryk, a conservative appointee of former President Trump, is expected to rule that the Food and Drug Administration’s (FDA) approval of mifepristone was flawed and that the drug must be removed from the national marketplace. The judge has a track record of opposition to abortion, and he made a legally flimsy ruling against contraception last December, so a decision against the abortion drug is more than likely. He has a clear conflict in this case and should have recused himself.
Mifepristone stops the development of pregnancy and is used in combination with another drug, misoprostol, which induces an early abortion. It was approved by the FDA in 2000 and has since been safely used by more than 5 million women in America and many millions elsewhere. The Government Accountability Office investigated the drug during the tenure of President George W. Bush and found no flaw in the FDA review.
The plaintiffs in the case specifically selected Judge Kacsmaryk in what has become commonplace forum shopping by conservative litigants. That is, you pick a judge you strongly suspect will rule in your favor rather than one who might be dedicated to the rule of law. It happens quite often in Texas, where some federal court districts have only one federal judge. Most other states have multi-judge districts where the presiding judge is randomly assigned.
Texas Attorney General Ken Paxton, infamous for his preposterous lawsuit seeking to overturn the 2020 election, has perfected the art of forum shopping for friendly judges under the Texas system. In 26 suits against the Biden administration in the last two years, Paxton filed seven in Kacsmaryk’s one-judge district and another seven in the one-judge district of another conservative judge.
This is a gross abuse of the justice system that should be halted by Congress. Forum shopping has most effectively and more recently been used by Republicans but was also used by Democrats in the Trump years. It should be fixed by legislation requiring that cases where national injunctive relief is sought be handled by the federal courts in Washington, D.C., which routinely decide such cases.
Congress should also delineate when a nationwide injunction may be issued and what requirements must be shown to obtain one. The use of such injunctions has gotten out of hand, and it is not clear what legal authority exists to support them. They were virtually unheard of until the 21st century. During the George W. Bush presidency, 12 such injunctions were issued. There were 19 during the Obama presidency and at least 55 under Trump. They have frequently been used against President Biden for things like masking on planes, immigration enforcement, vaccine mandates, student loan forgiveness, stimulus payments to farmers of color, climate change rules and a host of other issues. Both parties have decried them as being without statutory authority, usually depending on which party then holds the presidency.
There are technically two varieties of what are generally lumped together as nationwide injunctions. The plaintiffs in the mifepristone case claim FDA’s approval of the drug was faulty. They seek a “vacatur,” which would invalidate the drug’s approval and take it off the market. A typical injunction grants affirmative relief, but the basic effect of either is the same. Some observers believe a vacatur finds legal support in the Administrative Procedure Act passed by Congress in 1946, but the Act says nothing about nationwide injunctive relief.
The Congressional Research Service issued a report in 2021, noting that “no federal statute explicitly authorizes the courts to issue such injunctions, nor does any statute expressly limit their ability to do so, and the Supreme Court has not expressly ruled on the legality of nationwide injunctions.”
Elizabeth Prelogar, the U.S. solicitor general, raised the shaky legal foundation of the vacatur in an immigration case she argued before the Supreme Court last December. That drew a heated response from Chief Justice Roberts and Justice Kavanaugh, but she was right on the mark. These abusive measures need to be reined in by Congress if not by the Court.
Erwin Chemerinsky, dean of the UC Berkeley Law School, contends that they are a bipartisan problem and that their wanton use should be abolished. However, we need not go that far. There are likely a few cases where nationwide injunctions would be appropriate, but their present widespread use is unwise and destructive to our legal system.
The Republican-controlled House Judiciary Committee approved legislation in 2018 to do away with most nationwide injunctions. The bill did not get further action but does show that there is bipartisan concern about the abusive practice. The time has come for Congress to act by: (1) significantly limiting the cases where a nationwide injunction can be issued; (2) spelling out the requirements for obtaining the relief; (3) specifying that litigation seeking the relief must be filed in the federal district court in Washington; and (4) requiring approval by the D.C. appellate court before a nationwide injunction could take effect.
Allowing ideology-driven federal judges to exercise authoritarian control over the entire country is a gross distortion of our system of justice. Congressional action is essential to stop the practice.
Jim Jones is a Vietnam combat veteran who served eight years as Idaho attorney general (1983-1991) and 12 years as a justice on the Idaho Supreme Court (2005-2017). He is a regular contributor to The Hill.