Zombie movies are popular because they tap into a near-universal fear that what was once dead and buried can come back to life to haunt us. A federal district court judge’s decision to resurrect discredited legal theories and revive a 1873 law in order to block use of a so-called abortion pill will do just that.
The decision resuscitates a “zombie law” from the 1870s, the Comstock Act, which hasn’t been used for nearly a century. The legal equivalent of a zombie flick, the act essentially resurrects baseless arguments and once-dead law to wreak havoc on our settled legal principles. And the real horror is the damage that could be done to women’s ability to obtain safe, reliable and life-saving reproductive care.
Among other things, Kacsmaryk ignored data that taking mifepristone is safer than taking Tylenol.
Late last week Texas Judge Matthew Kacsmaryk granted anti-abortion activists a nationwide preliminary injunction, invalidating the Food and Drug Administration’s approval of the prescription and use of mifepristone, one of the two drugs prescribed for women to obtain medication abortions. More than half of abortions in this country are medication abortions.
Kacsmaryk put his ruling on hold while the Department of Justice appeals the case to the 5th Circuit Court of Appeals. But the danger unleashed by his 67-page opinion could remain.
Kacsmaryk’s decision is riddled with legal and factual errors. To name just a few: First, Kacsmaryk changed the legal definition of standing. Standing is a legal doctrine that requires that plaintiffs who sue in federal court have suffered a concrete and particularized injury or actual and imminent harm that was caused by the action they’re complaining about, and which can be remedied by a favorable judicial ruling. Kacsmaryk concluded that the doctors who sued had standing to do so on the theory that they might have to treat a woman who was given mifepristone by a different health care provider and…
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