Silently running beneath Matthew Kacsmaryk’s legal conclusion is the so-called ‘pro-woman/pro-life’ belief that terminating a pregnancy is a repudiation of God’s gendered order of the universe.
On April 7, in a decision replete with “junk science,” Texas federal district court judge Mathew Kacsmaryk issued an unprecedented ruling revoking the FDA’s 2000 approval of mifepristone in the case of Alliance of Hippocratic Physicians, et. al., v. FDA.
The Supreme Court has since blocked his order while the appeal is pending—a somewhat hopeful sign, beyond the immediate benefit of mifepristone remaining available on the market for now—until there’s a final ruling on the merits of the case. But there is no way of knowing with certainty what the outcome of the case will be, and whether any elements of Kacsmaryk’s decision will remain standing as good law.
Kacsmaryk’s opinion is saturated with misleading anti-abortion tropes. He calls medication abortion “chemical abortion,” and—in furtherance of the anti-abortion movement’s goal of a national abortion ban—the fetus is an “unborn human” or “unborn child.”
In another rhetorical gambit, Kacsmaryk refers to those who have had abortions as “post-abortive”—the preferred term of proponents of the “pro-woman/pro-life” framing of the anti-abortion position. Claiming that women are the second victim of the abortion “industry,” the grieving “mother” now shares the spotlight alongside the fetus.
In his calls for this strategic reframing, David C. Reardon—the architect or “Moses” of this new approach—said the anti-abortion movement has a moral obligation to protect women from an act that leads “not to happiness and freedom, but to sorrow and enslavement.”
In an attempt to prove women must be protected from the “sorrow and enslavement” of abortion, Reardon likens abortion providers to Nazis. “The similarity between Nazi manipulators of the Jews and the abortionists’ manipulation of women faced with crisis pregnancies is striking,” he wrote in his book Making Abortion Rare: A Healing Strategy for a Divided Nation.
Kacsmaryk cites Reardon’s work … They have rendered women incapable of protecting their own interests.
Reardon established the Elliott Institute for Social Science Research, committed to finding “compelling evidence” to advance the narrative of post-abortion grief and regret—a reality that he proclaims is the inevitable outcome of violating “natural law,” making it “impossible to rip a child from the womb of a mother without tearing out a part of the woman herself.” Casting abortion as “an act of despair” that turns women away from God and towards Satan, the underlying drive behind this deeply religious and highly gendered anti-abortion script is to convert non-believers to the cause by, in Reardon’s words “teaching morality by teaching science.” Thus persuaded, they will “begin to respect God’s law. They will begin to think, ‘Maybe all these religious folks weren’t so crazy after all.’”
Now to connect the dots: Kacsmaryk cites Reardon’s work in support of his conclusion that, because women who have had abortions “often experience shame, regret, anxiety, depression, drug abuse and suicidal thoughts because of the abortion,” they have been rendered incapable of protecting their own interests.
Notwithstanding the deep methodological flaws in Reardon’s work and that heaps of scientific literature that thoroughly debunk “post-abortion syndrome,” Kacsmaryk gives it legal legs by concluding that because of the “deeply traumatizing” nature of abortion, the pro-life physician-plaintiffs are entitled to “third-party” standing—vesting them with the authority to sue on behalf of their patients who ostensibly cannot speak from themselves.
This grant of legal authority compounds the already legally wonky conclusion that the physician-plaintiffs have the requisite standing, which requires that they have personally suffered, or will “imminently suffer” a “concrete and particularized injury” stemming from the “allegedly unlawful actions of the opposing party” to even present their own claims of injury in federal court.
A body of evidence-based research refutes Kacsmaryk’s characterization of abortion as a ‘deeply traumatizing’ experience, such that women are divested of their ability to speak for themselves.
Standing cannot simply be based on, as in the present case, the “vague speculation that someday, somewhere, some unspecified doctor will be ‘overwhelmed’ by an onslaught of patients coming to the ER after taking mifepristone” and that this doctor might “be forced to be made ‘complicit’ in an ‘elective chemical abortion,’” Adam Unikowsky wrote. “The plaintiffs’ philosophical disagreement with abortion does not give them standing.”
Assuming, however, that Kacsmaryk is correct in his conclusion that the physician-plaintiffs somehow have standing to present their own claims of injury stemming from the FDA’s approval of mifepristone, this does not automatically give them third-party standing to present the claims of their patients. As the Supreme Court has made clear, given that “third parties themselves usually will be the best proponents of their own rights,” third-party standing should be limited to situations where there is both a “genuine obstacle” to the ability of a person to assert their own rights as well as a close relationship between the “hindered” rights-holder and the plaintiffs. Neither is present in this case—rendering Kacsmaryk’s conclusion that the physician-plaintiffs are the “least awkward challengers” to the FDA’s approval of mifepristone a legal imaginary.
As to the “genuine obstacle” requirement: A body of evidence-based research refutes Kacsmaryk’s characterization of abortion as a “deeply traumatizing” experience, such that women are divested of their ability to speak for themselves. It also firmly establishes that relief is the “predominating” response to abortion, and that the “overwhelming majority of women” believe that it “was the right decision for them.” There are no actual real-live patients who, based on their close relationship with a plaintiff-physician,” requested that they intercede on their behalf. Rather, what we have is a “totally conjectural class of patients.”
Kacsmaryk’s grant of third-party standing enabling the physician-plaintiffs to sue on behalf of a chimerical class of “post-abortive” women is a deeply paternalistic imposition of a medical and legal hegemony over the reproductive bodies of those who choose abortion. Silently running beneath this legal conclusion is the pro-woman/pro-life belief that terminating a pregnancy is a repudiation of God’s gendered order of the universe.
It remains to be seen if the higher courts are persuaded by Kacsmaryk’s conclusions about standing. At the moment at least, the Fifth Circuit Court of Appeals agrees that the plaintiffs have standing to pursue their own legal claims against the FDA, a conclusion that Unikowsky argued “grossly distorts the record.”
The Court is less sanguine, however, about the grant of third-party standing stating it does not “hold that doctors necessarily have standing to raise their patients’ claims … whenever they are called upon to do their jobs.”
However, this is far from the final word on what could ultimately be a legal advance of the religiously inspired ‘abortion regret’ narrative.
U.S. democracy is at a dangerous inflection point—from the demise of abortion rights, to a lack of pay equity and parental leave, to skyrocketing maternal mortality, and attacks on trans health. Left unchecked, these crises will lead to wider gaps in political participation and representation. For 50 years, Ms. has been forging feminist journalism—reporting, rebelling and truth-telling from the front-lines, championing the Equal Rights Amendment, and centering the stories of those most impacted. With all that’s at stake for equality, we are redoubling our commitment for the next 50 years. In turn, we need your help, Support Ms. today with a donation—any amount that is meaningful to you. For as little as $5 each month, you’ll receive the print magazine along with our e-newsletters, action alerts, and invitations to Ms. Studios events and podcasts. We are grateful for your loyalty and ferocity.