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Judge’s nationwide abortion pill ban ‘could open the floodgates’

Medicines for gay, bi, and trans Americans could be next

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Judge Matthew Kacsmarykoā€™s ruling would ban the nationwide sale and distribution of the abortion pill mifepristone. (Screen capture via YouTube)

White House Press Secretary Karine Jean-Pierre told reporters on Monday that last week’s decision by a Texas court to ban the nationwide sale and distribution of the abortion pill mifepristone “could open the floodgates for other medications to be targeted and denied to people who need them.”

Following that ruling by Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas, American Medical Association President Jack Resneck raised similar concerns in a statement warning that “upending longstanding drug regulatory decisions by the U.S. Food and Drug Administration (FDA)” would position “other drugs at risk of being subject to similar efforts.”

“This ruling makes every medication on the market a potential target for political grandstanding,” Whitman-Walker Institute Executive Director Kellan Baker told the Washington Blade by email.

“Now that Judge Kacsmaryk has decided that he knows more about medical evidence than the FDA, the entire foundation of the FDAā€™s essential role in safeguarding access to medications is now subject to political attack,” Baker said.

“Youā€™re not talking about just mifepristone,ā€ U.S. Department of Health and Human Services Secretary Xavier Becerra said during an appearance on CNNā€™s ā€œState of the Unionā€ Sunday. ā€œYouā€™re talking about every kind of drug. Youā€™re talking about our vaccines. Youā€™re talking about insulin. Youā€™re talking about the new Alzheimerā€™s drugs that may come on.ā€

Likewise, in an interview on Pod Save America that aired Tuesday, law professor Leah Litman agreed drugs like HIV medications, along with vaccines like those targeting HPV and COVID, or birth control pills, could be next.

Medicines for trans youth and adults, in some cases, have been targeted with legislation passed by conservative states to restrict access to guideline directed medically necessary interventions for the treatment of gender dysphoria.

And last year, another Texas court ruled that employers can deny health coverage for PrEP, a medication used to prevent the transmission of HIV.

More litigation lies ahead, along with more uncertainty

Ruling in Alliance for Hippocratic Medicine v. FDA, Kacsmaryk had issued a stay on the Food and Drug Administration’s conclusion that mifepristone is safe and effective, a finding the agency reached in 2000 that has since been buttressed by more than two decades of clinical evidence.

It was roundly denounced as unscientific, the product of the judge’s longstanding and well documented ideological opposition to abortion.

The Biden administration was prepared for Kacsmaryk’s decision, Jean-Pierre said: Attorney General Merrick Garland immediately pledged the Justice Department to appeal and seek a stay (of Kacsmaryk’s ruling) pending the outcome of additional litigation. And then on Monday the Department asked the U.S. Court of Appeals for the Fifth Circuit to halt implementation of the ruling.

Other powerful legal actors had also been on notice. On Monday, New York Attorney General Letitia James led a coalition of state attorneys general in challenging Kacsmaryk’s ruling with an amici brief filed to the 5th Circuit.

Casting additional uncertainty into the mix was a separate ruling, just hours after Kacsmaryk’s, by Judge Thomas Rice of the U.S. District Court for the Eastern District of Washington, who ordered the FDA to make no changes to the availability of mifepristone.

The case in Washington was brought by attorneys general from 17 states and the District of Columbia in anticipation of Kacsmaryk’s ruling, and the split decision means the matter is likely to be settled by the U.S. Supreme Court.

Some legal observers have speculated that the Biden administration may be pushing for this outcome, hedging that even with its 6-3 conservative supermajority the justices are likely to reject Kacsmaryk’s analysis of the relevant facts on substantive or procedural grounds.

Still, and notwithstanding the fate of other medications or vaccines in the hands of Kacsmaryk or his ideological allies on the federal bench, the Texas court’s ruling raises other major questions.

For example, can a federal judge circumvent the congressionally ordained power of America’s federal administrative agencies? If so, under which circumstances? How about the practice of forum shopping, by which litigants deliberately move to have their cases adjudicated by judges they expect will be most sympathetic? And what will all of this uncertainty mean for the global biopharmaceutical industry and the future of drug discovery in America?

One solution that was proposed by at least two Democratic members of Congress, Rep Alexandria Ocasio-Cortez (N.Y.) and Sen. Ron Wyden (Ore.): the Biden administration should simply ignore Kacsmaryk’s ruling.

“I believe the Food and Drug Administration has the authority to ignore this ruling, which is why Iā€™m again calling on President Biden and the FDA to do just that,” Wyden said in a statement Friday.

“If they don’t,” warned the senator, “the consequences of banning the most common method of abortion in every single state will be devastating.ā€

“The courts rely on the legitimacy of their rulings, and what they are currently doing is engaging in an unprecedented erosion of their legitimacy,” Ocasio-Cortez told Anderson Cooper during an interview on CNN Friday.

On Twitter, the congresswoman addressed the backlash against her comments, explaining that Republicans have also ignored court orders in cases where they felt they were unlawful.

On Monday, the White House circulated an open industry letter signed by more than 200 pharmaceutical industry executives, which echoed criticisms of Kacsmaryk’s ruling that noted his lack of formal education or training in science or medicine.

The executives’ letter also argued the decision presents systemic risks to the drug discovery pipeline.

ā€œAs an industry we count on the FDAā€™s autonomy and authority to bring new medicines to patients under a reliable regulatory process for drug evaluation and approval,” the group wrote.

“Adding regulatory uncertainty to the already inherently risky work of discovering and developing new medicines will likely have the effect of reducing incentives for investment, endangering the innovation that characterizes our industry.ā€

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U.S. Federal Courts

Melissa DuBose becomes first Black and first LGBTQ judge on federal court in R.I.

Senators also advance Nicole Berner’s nomination

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Judge Melissa R. DuBose (Screen capture: Roger Williams University School of Law/YouTube)

Judge Melissa DuBose was confirmed by the U.S. Senate on Tuesday for her appointment by President Joe Biden to the U.S. District Court for the District of Rhode Island, where she will be the first Black and the first LGBTQ judge to serve on the bench.

DuBose thanked her partner Amy ā€œfor blessing me with over two decades of unwavering love, support, laughter and patience,ā€ and their ā€œtwo remarkable sons ā€¦ for gracing me with that special love that is reserved for mothers and sons.ā€Ā 

The vote was 51-47, with only two Republicans supporting her nomination, Susan Collins of Maine and Lindsey Graham of South Carolina.

During a confirmation hearing in February, U.S. Sen. John Kennedy (R-La.) grilled DuBose about an article 24 years ago in which she was quoted as saying she had gone through “a Marxist phase.”

Currently serving as associate judge on the Rhode Island District Court in Providence, DuBose’s nomination was enthusiastically supported by her state’s two Democratic U.S. senators., Jack Reed and Sheldon Whitehouse.

ā€œSheā€™s proven to be an exceptional jurist with a stellar record,ā€ said the former on the Senate floor, adding, ā€œShe has dedicated her life to public service, and Rhode Island is fortunate that she has once again answered the call.ā€

Whitehouse said, ā€œThis is a person, a lifelong Rhode Islander, who is exceedingly well regarded in our community.”

Nicole Berner’s nomination advances

Another lesbian judge nominated by Biden to serve a lifetime tenure on the federal bench is Nicole Berner, who has long served as general counsel of the Service Employees International Union and was tapped to join the 4th U.S. Circuit Court of Appeals.

The Senate moved for a cloture vote on her nomination Thursday, meaning a final vote is expected as early as next week. She would be the first LGBTQ judge on the circuit court and the 11th confirmed LGBTQ judge nominated by Biden ā€” tying with the record number who were appointed by former President Barack Obama over two terms in office.

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U.S. Federal Courts

N.Y. AG joins multi-state brief in Colo. anti-trans discrimination case

Letitia James and 18 other attorneys general support plaintiff

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trans health care, gay news, Washington Blade
New York Attorney General Letitia James (Photo public domain)

New York Attorney General Letitia James on Wednesday joined a brief by 18 other Democratic state attorneys general urging the Colorado Supreme Court to uphold a lower court ruling against Masterpiece Cakeshop for anti-trans discrimination.

A customer, Autumn Scardina, sued the business over claims that it refused to provide her a cake upon learning that it was for a celebration of her transition. The case is not the first in which owner Jack Smith has faced claims of anti-LGBTQ discrimination.

In 2012, Masterpiece Cakeshop refused to fulfill an order for a wedding cake for a same-sex couple, which led to the 2018 U.S. Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission ā€” and a narrow ruling that did not address core legal questions weighing the constitutionality of First Amendment claims vis-a-vis the government’s enforcement of LGBTQ-inclusive nondiscrimination laws.

ā€œDenying service to someone simply because of who they are is illegal discrimination, plain and simple,ā€ James said in a press release. ā€œAllowing this kind of behavior would undermine our nationā€™s fundamental values of freedom and equality and set a dangerous precedent.”

She added, “I am proud to stand with my fellow attorneys general against this blatant transphobic discrimination.ā€

The Colorado Court of Appeals ruled in favor of Scardina, noting that Smith objected to fulfilling her cake order only after learning about her intended use for it “and that Phillips did not believe the cake itself expressed any inherent message.”

The fact pattern in both cases against Masterpiece Cakeshop resembles that of another case that originated in Colorado and was ultimately decided by the Supreme Court last year, 303 Creative LLC v. Elenis.

This time, the justices did not sidestep the question of whether the state’s anti-discrimination law can be enforced against a business owner, Lorie Smith, a website designer who claimed religious protections for her refusal to provide services to a same-sex couple for their nuptials.

The court’s conservative supermajority ruled in favor of Smith, which was widely seen as a blow to LGBTQ rights.

Joining James in her brief are the attorneys general of Connecticut, Delaware, Hawai’i, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, Nevada, New Jersey, Oregon, Pennsylvania, Rhode Island, Vermont, Washington and D.C.

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U.S. Federal Courts

Fla. man found guilty of threatening George Santos

Gay former NY congressman expelled in December

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Former U.S. Rep. George Santos (R-N.Y.) (Washington Blade photo by Christopher Kane)

On Feb. 22, following a two-day trial, a federal jury in Ft. Lauderdale convicted a man for calling the office of former U.S. Rep. George Santos (R-N.Y.) in D.C. and threatening to kill the member of Congress and another person.Ā 

On Jan. 29, 2023, Frank Stanzione, 53, of Boynton Beach, Fla., made a telephone call from his residence in Boynton Beach to the office of a member of the U.S. House of Representatives. Stanzione left a voice message for the member that stated the following:

“[Victim 1 formerĀ Rep. Santos] you fat fucking piece of shit fucker. You better watch your mother fucking back because Iā€™m gonna bash your mother fucking fucker head in with a bat until your brains are splattered across the fucking wall. You lying, disgusting, disgraceful, mother fucking fucker. You mother fucking piece of shit. Youā€™re gonna get fucking murdered you goddamn lying piece of garbage. Watch your back you fat, ugly, piece of shit. You and [Victim 2Ā Redacted] are dead.”

The congressman’s chief of staff reported the message to the U.S. Capitol Police the next morning. The USCP began investigating the voice message as a threat and determined that it was made from a telephone number assigned to Stanzione. 

On Jan. 31, 2023, USCP special agents went to the address associated with the telephone number and interviewed Stanzione. USCP confirmed that Stanzione had left the voice message for the congressman. Stanzione found the telephone number on an online search engine. 

In a motion to dismiss, lawyers for Stanzione noted in the interview he told federal agents that ā€œhe feels offended by Santos and does not want him in his (gay) community.ā€ He said he left the message to make Santos ā€œfeel like a piece of shit.ā€

The court filing described Stanzione as ā€œa long-standing, active advocate for gay rights.ā€

In the motion to dismiss, Stanzione claimed his prosecution was ā€œretaliatory and vindictiveā€ and ā€œbased upon his exercise of political speech related to gay rights.ā€

ā€œOthers who have allegedly committed similar acts,ā€ his attorneys stated in the motion, ā€œhave not been prosecuted.ā€ 

U.S. Attorney Markenzy Lapointe for the Southern District of Florida and USCP Chief J. Thomas Manger announced the guilty verdict. The USCP ā€“ Threat Assessment Section investigated the case. 

Stanzione will be sentenced in May and faces penalties including up to five years in federal prison, a fine of up to $250,000, or both.

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