Shawn Vestal: Spokane judge’s ruling demonstrates all that’s wrong with Texas finding

The best way to see all that’s wrong with the Texas judge’s attempt to impose a national ban on the abortion pill is to read it side by side with the sober, serious ruling issued by a federal judge here in Spokane.

It’s all right there in the words they used.

One is a work of cranky activism, filled with talking points. The other is a measured, even dull, evaluation of the law.

One cherry-picks and politicks, deploying the rhetoric of the overheated stump speaker. The other weighs legal arguments and cites precedent in the cool, even-tempered language of impartiality.

One seems biased and unsound. The other seems dependable and serious.

One attempts to impose a nationwide rule on mifepristone. The other noted why such a blanket injunction would be improper.

These two rulings are on a collision course, perhaps to be resolved at the Supreme Court. Who knows whether the court that recklessly discarded Roe will side with the activist judge from Texas or the – one is tempted to say actual – judge from Spokane.

At this point, though, the local guy’s jurisprudence, reasoning and impartiality tower over the Texan’s.

Federal Judge Thomas O. Rice is a Spokane native, born here in 1960, and a graduate of Gonzaga University and Gonzaga Law School. A longtime former assistant U.S. attorney for Eastern Washington, he was nominated to the federal bench by President Obama in 2011 and confirmed by the Senate in 2012.

His ruling in the case of the abortion medication mifepristone – which is widely used to end pregnancies in the first 10 weeks of gestation – came just 20 minutes after the Texas ruling last Friday, in which the Trump-appointed Judge Matthew Kacsmaryk suspended the Food and Drug Administration’s approval of the drug.

Kacsmaryk’s ruling attempts to capitalize on the post-Dobbs landscape with a national ban on the medication, clearly contradicting the notion in Dobbs that individual states could chart their own legal course on abortion.

Rice, meanwhile, issued a preliminary injunction to protect the status quo in 17 states and the District of Columbia – a temporary stay while the case proceeds. The attorneys general from those states are challenging existing restrictions on the use of mifepristone and attempting to preserve its availability. Rice was asked this week by the Department of Justice to explain the government’s obligations in the face of the tension between the rulings.

Rice’s injunction indicates that he sees the arguments of the attorneys general as likely to win on the merits, and that the immediate removal of the drug from the market would do irreparable harm. He limited his injunction to those states that brought the suit, and argued a nationwide injunction would be improper – in part because of the possibility of competing rulings.

Mifepristone, used in conjunction with misoprostol, is the most common method of abortion across the country. In more than 100 studies spanning three decades, it has proven to be safe – more than 99% of patients in those studies reported no serious complications, according to a New York Times review of the studies.

The Times reported that the research shows the rate of serious complications is 0.16% for surgical abortion, 0.31% for medication abortion, and 1.4% for childbirth.

Rice described the drug in his ruling as being “used in connection with the termination of early pregnancy.” He referred to the FDA’s conclusion that it is “safe and effective for medical termination of intrauterine pregnancy through 49 days’ gestation when used in a regimen with the already-approved drug, misoprostol.”

He also wrote, “It is not the court’s role to review the scientific evidence and decide whether mifepristone’s benefits outweigh its risks” under the current FDA set of regulations, but to evaluate whether the FDA had followed the law and its own procedures in coming to those regulations.

Kacsmaryk, on the other hand, repeatedly uses the rhetoric and arguments of the anti-abortion movement, and takes a snarky, opinionated line from the start. He refers to embryos – the terms for the stage of fetal development before the 10th week, when it becomes a fetus – as “unborn humans.” He calls children “unaborted children.” He says mifepristone is used to “kill the unborn human” and refers to “unborn humans extinguished by mifepristone.”

He defends this rhetorical chicanery in a footnote: “Jurists often use the word ‘fetus’ to inaccurately identify unborn humans in unscientific ways.”

So much for science. Using the strategy of an anti-vaxxer, he ignores the large body of evidence indicating the drug is safe and elevates stories of negative side effects repeatedly; he also leans heavily on the anti-abortion movement’s narrative that women who have abortions often suffer long-term trauma. (In fact, one recent study found that 95% of women who had an abortion felt five years later that it had been the right decision.)

For evidence, Kacsmaryk cites among his sources a former member of the House of Representatives, Mark Souder. (Souder, who described himself as “ultraconservative,” resigned in 2010 after acknowledging an affair with a staffer.) Kacsmaryk also asserts that the FDA underestimates the negative post-traumatic effects of abortion, an assertion based in part on “myriad stories and studies brought to the Court’s attention.”

The ruling is a travesty, for these reasons and many others. Rice’s ruling – serious, well-reasoned and sane – stands in sharp, clarifying contrast.