Kevin Ross The Podcast

The case of the dueling abortion rulings. Let the fireworks begin!

Episode 11

On Friday April 14, 2023, the battle of the competing federal abortion pill rulings will continue to rage on. What’s going to happen next? Boss Ross weighs in, providing legal analysis on this hot button issue where the political stakes couldn’t be higher. 


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Hi, I’m Kevin Ross. And this is The Podcast, The Case Of The Dueling Abortion Rulings. Let The Fireworks Begin!

Based on the evidence and the testimony before this court, the gavel comes down in favor of the, oh, wait snap. I’m not presiding over my show, America’s Court with Judge Ross. We’re actually dealing with this issue of reproduction rights gripping our nation right now. And these two dueling abortion pill rulings one, on April the 7th, 2023 from an anti-abortion. Trump appointed federal judge the other decision literally an hour later from a more abortion rights siding, Obama appointed District Court Jurist.

Now let’s be clear as I see it, these legal shenanigans boil down to two issues. First, is it actually safe to use an oral abortion medication? This despite it being used in as many as half of us abortions. And second, can that drug be sent out via the US mail to millions of Americans who want to terminate a pregnancy for whatever reason. To both questions, Texas Judge Matthew Kacsmaryk says, no,the drug Mifepristone hasn’t been established as sufficiently safe in his eye and it can’t be sent out through the mail even if its safety is not an issue.

And this is why a preliminary injunction is warranted according to Judge Kacsmaryk. Now, Judge Thomas Owen Rice of Washington, however says, yes, Mifepristone is safe and for the 17 states plus the District of Columbia, allowing for medicated abortions, the mailing of these medicines is no problemo. Now, when you have these two federal judges with equal power and authority saying two completely different things, well, that’s unsustainable, right?

If you’re seeking a higher court’s review on the Texas ruling, then the next step is the conservative fifth circuit appellate court which when I say conservative, it’s mostly been appointed by Republican Presidents.

And now if we’re talking about appellate review on a Washington State federal matter, we are now referring to the more liberal leaning, meaning appointed more by Democratic presidents and that would be the ninth circuit appellate court, but check it out. Do you all see what game is being played here?

I mean, come on. None of this is coincidental, which is why the U.S. Supreme Court will once again be making a ruling on this issue of abortion. Now, the last time they did this was on June 24th, 2022. It involved the case Dobbs V Jackson where there was a challenge to Mississippi law that said absent a medical emergency or severe fetal abnormality no abortion. Period.

Can be performed beyond 15 weeks of gestation. The Supreme Court ruled in Dobbs that the Constitution does not confer a right to an abortion and any established legal precedent in Roe v Wade, which is was a case from 1973 that allowed for abortion as well as this case, Planned Parenthood V Casey from 1992 which essentially affirmed Roe both these cases per the Supreme Court last year said, hey, they are now overruled and moving forward this issue of abortion henceforth is being returned to the people vis-à-vis their state representatives, essentially states rights.

Now, there’s this domino effect with this new issue of who should decide the safety of an abortion drug. Should it be the Legislative branch of the government? Are we talking the Judicial branch or are we looking at an administrative branch like the Food and Drug Administration? The FDA? See the FDA follows what’s required of them by a federal statute governing the way agencies regulate certain things. U.S. federal courts, however, they have oversight in this specific area which is why this current battle is raging.

See, check this out over 20 years ago, the Food and Drug Administration actually approved of chemical abortions.

When the plaintiffs challenged the 2000 approval back in 2002. The question becomes, why did it take two decades for the FDA to respond? That’s problematic.

Now, the same day, the FDA rejected the 2002 objections in 2016. So now we have all these years go by, they end up approving of additional items such as reducing the number of required in person office visits and allowing non-doctors to prescribe and administer chemical abortions.

Judge Kacsmaryk believes the FDA simply ignored these pro-life doctors. Despite the law requiring a response from the FDA within 180 days of receipt.

The FDA insists this isn’t true that there have been no safety concerns in the 23 years Mifepristone has been on the market and as many as 64 million women of childbearing age could potentially be affected by this because see the way Mifepristone works is that it’s taken orally to block the hormone that supports menstruation and helps maintain the early stages of pregnancy, right? And then 24 to 48 hours after consuming it, there’s a second drug that’s taken. That drug is called Misoprostol and using Misoprostol with Mifepristone is more effective, but using Misoprostol alone is also safe.

It does however, take longer to complete and comes with more side effects. So the ideal situation if you’re going to utilize these drugs is to take both of them.

Now, the FDA maintains both are safe enough to be mailed following in person visits from a certified provider.

The judge in Texas, Judge Kacsmaryk however, disagrees asserting that the 1873 Comstock Act disallows the dispensing of chemical abortion drugs through the mail because it quote, violates unambiguous federal criminal law.

Here’s the deal, this antiquated Comstock law which has been dormant for over 50 years after Roe V Wade allowed for abortions would only apply to the Mifepristone , which started being used in 2000.

As opposed to the Misoprostol, which has existed since 1973 and it has other uses other than the termination of a pregnancy. So it would be difficult not to say that that’s not being sought after for now anti-abortionists want to see patients eventually become completely unable to access Mifepristone first, period where abortion is legal and only narrowly keep them in situations where in clinic surgical procedures are available. That is the ultimate goal is to keep it more narrow. The problem is you’re looking at people of color, the cost, the accessibility, the stigma people like having this done through the mail and in their own homes. And it will be interesting to see where we go from here.

So what happens next? Well, everyone’s lawyered up for the next hearing in Texas on April 14th 2023. Since the Judge stayed his ruling until then. There is a strong possibility that ultimately, the Supreme Court Justices could side with Judge Kacsmaryk on at least one or two issues and we will then have additional restrictions on if how and when pregnancies can be terminated.

Of course, this would land us right in the middle of the 2024 presidential pre-election cycle. That’s when it commences which frankly, I don’t see how this bodes well for the G.O.P. but you know, that’s just my humble opinion. Folks, fasten your seat belts. It’s going to be a bumpy ride.

I’m Kevin Ross and this is The Podcast powered by TheGrio.

Follow me @IamBossRoss on Instagram and Twitter. Thanks for listening. See you next time.