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‘Abortion Pill Ruling is Bad Law’

April 14, 2023

At The New York Times, Visiting Prof. Kate Shaw argues that the Biden Administration should challenge the recent abortion pill decision.

Kate Shaw, Visiting Professor of Law, penned an op-ed at The New York Times urging the Biden Administration to challenge the recent ruling on the abortion pill, mifepristone.

In “The Abortion Pill Ruling is Bad Law, and the Biden Administration Should Fight It,” Shaw writes, “The Biden administration should be swift and forceful in its response to Judge Kacsmaryk’s ruling, using every tool available to highlight the lawlessness of what the judge has done and to limit any damage that may occur.”

Shaw is a Professor of Law at the Benjamin N. Cardozo School of Law. She teaches Constitutional Law, Administrative Law, Legislation, and a seminar on the Supreme Court.

Her academic work focuses on executive power, the law of democracy, the Supreme Court, and reproductive rights and justice. She previously worked in the Obama White House Counsel’s Office and served as a law clerk to U.S. Supreme Court Justice John Paul Stevens and the Honorable Richard Posner.

From The New York Times:

The Friday-night ruling by Judge Matthew Kacsmaryk purporting to stay the Food and Drug Administration’s approval of mifepristone for use in early abortions is a travesty — for women’s health care, principles of democracy, notions of judicial impartiality and the rule of law.

Judge Kacsmaryk put his opinion on hold for seven days to allow the government to seek emergency relief, and the federal government has already filed its notice of appeal in the Fifth Circuit. But if the opinion ever goes into effect, the broadest reading of it could render mifepristone unavailable not just in states like Texas but across the country.

At last month’s hearing on this challenge, the plaintiffs could not identify a single case in which another federal judge had issued the sort of order that Judge Kacsmaryk, an appointee of Donald Trump, ultimately issued. Indeed, our legal system does not ordinarily allow a single Federal District Court judge to override an expert agency’s decades-old decision, in this case that a drug is safe and effective — in particular when that drug is as widely used and essential as mifepristone, one of the medications in the two-drug protocol that is now used in over half of the abortions in this country… . 

Read the full piece at The New York Times.