[Congressional Record Volume 169, Number 32 (Thursday, February 16, 2023)]
[Senate]
[Pages S438-S441]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                                Abortion

  Mr. WYDEN. Mr. President, on the first floor of the Federal building 
in

[[Page S439]]

Amarillo, across the street from a grassy park and a few blocks away 
from the local minor league baseball stadium, is a U.S. District 
Courtroom for the Northern District of Texas.
  Presiding over that courtroom is a lifelong rightwing activist, a 
partisan, an ideologue, an anti-abortion zealot who was handpicked by 
Donald Trump and the Federalist Society to pretend to be impartial on 
the bench. Instead, what he is doing is delivering favorable rulings on 
the cases his fellow rightwing ideologues funnel his way.
  His name is Judge Matthew Kacsmaryk. He was confirmed in 2019 on a 
party-line vote. In a matter of days, he is going to issue a ruling on 
a case so absurd and so meritless that it doesn't deserve a single 
breath of argument in his courtroom. The case is the so-called Alliance 
for Hippocratic Medicine vs. U.S. Food and Drug Administration. If we 
allow it, Kacsmaryk's ruling could deal the next devastating blow to 
the right to privacy in America and the right of all women across the 
country to control their own bodies, not just in Texas, but all 50 
States--every single one.
  So this afternoon, I am going to describe this dangerous new 
political scheme playing out in the courtroom, and I call this scheme 
``courtwashing.'' I am going to talk about what the President and the 
Food and Drug Administration must do when this judge's ruling comes 
down.
  The lawsuit in Texas aims to undo the Food and Drug Administration's 
2000 approval of a medication called mifepristone, one of two drugs 
that is used in a medication abortion. The drug has a record of being 
very safe and effective. It is used in more than 50 percent of 
abortions nationwide. It has been on the market and used for this 
important treatment for three decades. Anyone who calls its safety into 
question is just ignoring the factual record.
  I have a long history of working on policy relating to mifepristone. 
I was one of the first elected officials to advocate for its use in our 
country. In 1990, I chaired the first-ever congressional hearing on 
mifepristone before the House Small Business Committee.
  But then, like today, rightwing extremists pulled out all the stops 
to keep the drug from being approved. They campaigned on the politics 
of fear, threatened lives, and just lied about the drug's safety. They 
even once deployed a small bomb at a conference where the chemist 
behind this medicine was scheduled to speak.
  Their efforts worked at first. The Food and Drug Administration 
imposed an import alert on the drug that hindered research on its uses 
outside of abortion. I fought that import alert and introduced a bill 
to remove the restriction. The Food and Drug Administration finally 
approved the drug in 2000. My advocacy around this issue and this drug 
has never been based on some political agenda but just science and 
fact.
  So let's look at the facts, not the fiction you hear from the 
plaintiffs in this case.
  It is a fact that this medication is key to ensuring fundamental 
rights, including the right to privacy and the right to make your own 
reproductive choices. Medication abortions allow for women to end a 
pregnancy at home in a way that is safe.
  It is a fact that mifepristone has fewer complications than Tylenol. 
A wealth of evidence demonstrates the drug's safety and effectiveness.
  It is a fact that Republicans on the Supreme Court have said the 
issue of abortion should be returned to the States, that the country 
shouldn't have a one-size-fits-all policy on this issue.
  So the question to ask is: How did it become possible for one single 
judge in Texas to be on the verge of blocking access to a drug that a 
duly-authorized Federal Agency has said is safe for over 20 years, and 
yet that judge could very soon block access to the drug nationwide?
  To answer that, it is appropriate to tell a little history. Congress 
long ago empowered the Food and Drug Administration made up of 
scientists to approve or disapprove the use of new drugs--not the 
States and certainly not activist judges. The Food and Drug 
Administration approved mifepristone 23 years ago. For those looking to 
challenge that approval, it is a little late. The statute of 
limitations allows challenges to food and drug procedures for 6 years.
  If that wasn't clear enough, Congress cemented its approval again in 
2007 as part of an amendment to the Food and Drug Act. Any drug--any 
drug--previously approved by the Agency was deemed to be in compliance 
with new rules governing the Food and Drug Administration. Mifepristone 
is covered by that amendment made by the legislative branch. There is 
no reasonable argument to the contrary.
  Nevertheless, the plaintiffs in this case want Judge Kacsmaryk to 
reach back through time, bust through the statute of limitations and 
congressional intent, and toss out the FDA's legal approval.
  Furthermore, the plaintiffs in the case have no standing to bring 
this suit. To establish standing, the plaintiff has to show actual harm 
or injury to demonstrate a direct impact by the actions of the 
defendant. The plaintiffs are extreme anti-abortion groups and their 
doctors.
  Here is the absurd claim they are putting forward. They argue--
defying science and fact--that some unknown future patient may take 
mifepristone, experience a highly unlikely side effect, and then 
somehow find their way into one of their exam rooms for treatment.
  If a standing claim that ridiculous and overly broad passes muster, 
than I just think it is time to rip up the legal textbooks in America 
and start over. That would mean that anybody could wander into Federal 
court and seek relief against anybody based on wild, dreamed-up 
scenarios, hypothesizing that somehow, someway, somebody might be 
injured in the future.

  Legal logic be damned, the plaintiffs know that Judge Kacsmaryk is 
sure not going to let pesky obstacles like precedent or science or 
standing get in the way of the agenda that they share. That is because 
Donald Trump and conservative activists planted him to be on that bench 
in the Amarillo courtroom right now. They know he has spent his whole 
career fighting shoulder to shoulder with them against LGBTQ equality, 
abortion, and contraception.
  He is there for one reason, and I call it ``courtwashing.'' In the 
``courtwashing'' scheme, the judge has the role of giving the 
appearance of judicial legitimacy--judicial legitimacy--to the outcomes 
that the rightwing activists know they are going to get as soon as 
their cases show up on his docket.
  In the few years that Judge Kacsmaryk has been on the Federal 
District Court, he has earned the title of the most lawless judge in 
America. It is tough to earn that kind of infamy in such a short time, 
but his rulings have justified it. He has issued constitutionally 
dubious and extraordinarily contentious opinions. He has defied 
precedent in protecting LGBTQ employees and attacked the right to 
contraception by restricting minors' access to it.
  Now he has got a case on access to abortion medication that is 
directly intertwined with the rights of privacy and choice.
  The plaintiffs who have no legitimate standing have handpicked him to 
hear this case that has no merit because they know what they are going 
to get with Judge Kacsmaryk.
  They have gone to him for ``courtwashing.''
  The plaintiffs want mifepristone outlawed in every single State in 
America, and with this judge, they found a way to make it happen. 
Because of how judges in this Federal district in Texas are assigned, 
the plaintiffs could use a procedural loophole and hot-wire the 
judicial branch. They could ensure Kacsmaryk was the only judge who 
would get the case--no shot of it getting assigned to anybody else.
  To make this more frightening, if and when Kacsmaryk tosses out FDA 
approval, Americans cannot count on the appellate courts to step in and 
do what is right, do what is constitutional.
  The appeal would land at the activist Fifth Circuit Court of Appeals. 
This is the same court that allowed Texas bill SB 8--effectively an 
abortion ban--to go into effect before the Supreme Court ruled on 
Dobbs.
  From there, any appeal would presumably head to the very same 
Republican majority on the Supreme Court that overturned Roe. The 
Roberts

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Court doesn't even wince at revoking constitutional rights and upending 
decades of precedent on legal grounds that are flimsy.
  By the way, at this point, I want to note it is a fairly recent 
phenomenon that a single judge even had the authority to issue a 
nationwide injunction. Until 1976, three-judge courts were required to 
enjoin Federal and State laws. Even after that, it was no longer 
required, it was relatively uncommon until about a decade ago to see 
Federal laws and policies blocked in their entirety by the ruling of 
one district court judge.
  Now, it is true that these types of injunctions have been used 
against both Democratic and Republican administrations. The difference 
here is that the appellate courts, and particularly the Supreme Court, 
are aiding these polarization efforts, but only for one side.
  So, some numbers. On 41 occasions, the Trump administration asked the 
Supreme Court to put on hold an adverse lower court ruling for the 
duration of the Government's appeal. In 28 of those cases, the Supreme 
Court granted the Trump administration relief. In comparison, the Biden 
administration has sought emergency relief from the Supreme Court nine 
times. The Supreme Court granted it on only two occasions. And, 
incredibly, the Court has granted emergency relief against the Biden 
administration four times, something that didn't happen during the 
lawless days of the Trump administration.
  So what does that mean for the case in Texas? Well, if and when Judge 
Kacsmaryk issues a ruling that he was handpicked to deliver, the 
``courtwashing'' is on.
  The Fifth Circuit, which has little respect for precedent, will 
almost certainly uphold his ruling. Then the Roberts Court will almost 
certainly leave the ruling in place through the long and arduous 
appellate process.
  All the while, millions of women will suffer grave danger. The harm 
that will result from this decision can't be overstated. Cut off from 
care they need, women will die. While this wouldn't be the first time a 
judicial decision has caused irreparable harm, this case is 
particularly offensive. It will come from a lawless judge picked by the 
litigants with no standing to bring a case that should be barred by the 
statute of limitations and has absolutely no merit.
  So I am here to sum it all up.
  Americans and their leaders must look at circumstances like this and 
say, ``Enough,'' not ``We will see what Congress might do'' or ``how 
the appeals process is going to play out.'' What is needed now is to 
just say, ``Enough.''
  The power of the judiciary begins and ends with its legitimacy in the 
eyes of the public. It doesn't have the military backing of the 
executive branch or Congress's powers of the purse. A judge's ruling 
stands because elected leaders and citizens have agreed that abiding by 
them is right and necessary to uphold the rule of law. It is part of 
our social contract, but the judiciary must uphold its end of the 
social contract too. It has got to follow the rule of law and earn the 
confidence of the American people every single day.
  Recently, that confidence has eroded--no secret why. Look at the 
Dobbs decision in overturning Roe. Look at what is happening in Texas 
now. Parts of the judiciary seem to have morphed into a mob of MAGA 
extremists, conspiring with and willing to do the bidding of every 
rightwing group or former President that appears before it, no matter 
the cost to life and liberty.
  The awful reality is, from the moment this case landed in front of 
Judge Kacsmaryk, it has been a rigged game, illegitimate. The case is 
an affront to the Constitution and to the rule of law in our country.
  So here is what must happen if and when Judge Kacsmaryk issues his 
nationwide injunction--nationwide. As to all of this business that the 
States have rights, uh-uh. This has nationwide implications to halt 
access to mifepristone. My view is that President Biden and the Food 
and Drug Administration must ignore a nationwide injunction from Judge 
Kacsmaryk. Don't give in to the ``courtwashing.'' Protect the 
fundamental rights and well-being of all women in America.
  The Food and Drug Administration ought to go on just as it has for 
the last 23 years since it first approved mifepristone. The Food and 
Drug Administration needs to keep this medication on the market, 
without interruption, regardless of what this ruling says.
  Doctors and pharmacies should go about their jobs like nothing has 
changed.
  American leaders who care about the right to privacy and the lives of 
women in this country must not let an illegitimate ruling in this case 
stand.
  It is just not possible to hide from this fight any longer. Let the 
rightwing extremists stand up and explain why they lied--why they 
lied--to the people of this country when they said the Dobbs case was 
just going to be about returning abortion law to the States.
  In the face of a ``courtwashing'' strategy, whose outcome is almost 
certainly predetermined, we can't possibly say we are just going to 
wait around and see what happens with Congress and the appeals process. 
Too much is at stake, and this case will not be in the hands of public 
servants who are staying true to their oaths of office.
  Women in America need to know that they are not going to be cut off 
from their privacy rights and the care that they seek and that they 
have a legal right to obtain--not for a year, not for a month, not for 
a day. If that is what the ruling would do, the answer is to ignore it, 
at least until there is a final ruling on the underlying matter by the 
Supreme Court.
  I do not say this lightly, and I have never said anything quite like 
this before. I believe in the three branches of government and respect 
the role of the judicial branch. I have had the honor to represent 
Oregon in the U.S. Congress for more than 40 years--first in the House 
and, for the last 27 years, in the Senate. I have raised my hand and 
taken an oath to uphold the Constitution of the United States. I do not 
intend to dishonor that oath, which is why I am standing here this 
afternoon.
  This judge is not upholding the oath he took. He is not adhering to 
the Constitution. He is stomping all over the privacy rights of 
millions of women in this country and ignoring the rule of law, and 
something needs to be done about it.
  Let me close by saying this wouldn't be the first time a political 
leader or an elected official has called on others to ignore a court 
ruling. Abraham Lincoln did it after the Supreme Court issued the 
historically egregious Dred Scott ruling, which held that Black people 
could never be citizens of the United States. Lincoln called the 
decision erroneous, an abomination. He pointed to the partisan bias in 
the opinion in that it was based on assumed historical facts which 
weren't true and that it was one opinion that couldn't be considered 
precedent.
  Sound kind of familiar?
  Lincoln's directive in response to the case was that it is the 
constitutional duty of elected officials to resist unconstitutional 
decisions of the courts, even the Supreme Court, if the rulings will 
harm the Nation and its people.
  Now, these cases are, obviously, different, with very different 
circumstances, and nothing--nothing--compares to the horrors of 
slavery. Nevertheless, these cases do have something in common. It is a 
question of the advancement of rights versus the deprivation of rights. 
The advancement of individual rights is at the core of our national 
character and history.
  This case before Judge Kacsmaryk rejects that. It is clearly part of 
an effort to backtrack on a century of progress for American women and 
to deprive them of fundamental rights--the right to privacy, the right 
to control their own bodies, and, stemming from that, the right to live 
and work and participate in American life fully and equally.
  That will be the outcome if the ``courtwashing'' strategy succeeds. 
If Judge Kacsmaryk can violate his oath to deliver the outcome his 
fellow rightwing activists are after and if the Fifth Circuit and the 
Supreme Court bless such a ruling as legitimate, we are going to see an 
affront to the Constitution.
  As Lincoln told his fellow Americans, the Supreme Court is not the 
Constitution--neither is Judge Kacsmaryk. The Constitution and the 
rights it affords

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American women are what this country must defend. I am here to say, 
``Enough,'' and to defend it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. WYDEN. Mr. President, I ask unanimous consent that the scheduled 
vote occur immediately.
  The PRESIDING OFFICER. Is there objection?
  Without objection, it is so ordered.

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