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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

Club Q shooter sentenced to life in prison for federal hate crimes

Five people killed in 2022 mass shooting in Colo.

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Assistant U.S. Attorney General Kristen Clarke of the Justice Departmentā€™s Civil Rights Division. (Justice Department YouTube screenshot)

Anderson Lee Aldrich, 24, formerly of Colorado Springs, Colo., was sentenced to 55 concurrent life sentences to run consecutive to 190 years in prison after pleading guilty to 74 hate crimes and firearms charges related to the Nov. 19, 2022, mass shooting at Club Q, an LGBTQ establishment in Colorado Springs.Ā Ā 

According to the plea agreement, Aldrich admitted to murdering five people, injuring 19, and attempting to murder 26 more in a willful, deliberate, malicious, and premeditated attack at Club Q. According to the plea, Aldrich entered Club Q armed with a loaded, privately manufactured assault weapon, and began firing. Aldrich continued firing until subdued by patrons of the club. As part of the plea, Aldrich admitted that this attack was in part motivated because of the actual or perceived sexual orientation and gender identity of any person.

ā€œFueled by hate, the defendant targeted members of the LGBTQIA+ community at a place that represented belonging, safety, and acceptance ā€” stealing five people from their loved ones, injuring 19 others, and striking fear across the country,ā€ said Attorney General Merrick Garland. ā€œTodayā€™s sentencing makes clear that the Justice Department is committed to protecting the right of every person in this country to live free from the fear that they will be targeted by hate-fueled violence or discrimination based on who they are or who they love. I am grateful to every agent, prosecutor, and staff member across the Department ā€” from the U.S. Attorneyā€™s Office for the District of Colorado, to the Civil Rights Division, the ATF, and FBI ā€” for their work on this case. The Justice Department will never stop working to defend the safety and civil rights of all people in our country.ā€

ā€œThe 2022 mass shooting at Club Q is one of the most violent crimes against the LGBTQIA+ community in history,ā€ said FBI Director Christopher Wray. ā€œThe FBI and our partners have worked tirelessly towards this sentencing, but the true heroes are the patrons of the club who selflessly acted to subdue the defendant. This Pride Month and every month, the FBI stands with the survivors, victims, and families of homophobic violence and hate.ā€

ā€œATF will not rest until perpetrators like this defendant are prosecuted to the fullest extent of the law,ā€ said Steven Dettelbach, director of the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF). ā€œI hope todayā€™s life sentence brings at least some peace to the victims and survivors of this senseless, horrific tragedy. That this sentence should come during Pride month reinforces how far we have left to go before all communities, including all LGBTQIA+ communities, are safe here. It also shows how far ATF and all our partners will go to ensure hatred does not win.ā€

ā€œThe defendantā€™s mass shooting and heinous targeting of Club Q is one of the most devastating assaults on the LGBTQIA+ community in our nationā€™s history. This sentence cannot reclaim the lives lost or undo the harms inflicted. But we hope that it provides the survivors, the victimsā€™ families, and their communities a small measure of justice,ā€ said Assistant Attorney General Kristen Clarke of the Justice Departmentā€™s Civil Rights Division. ā€œOur message today should be loud and clear. No one should have to fear for their life or their safety because of their gender identity or sexual orientation. The Justice Department will vigorously investigate and prosecute those who perpetrate hate-fueled, bias-driven attacks.ā€

ā€œHate has no place in our country and no place in Coloradoā€ said Acting U.S. Attorney Matt Kirsch for the District of Colorado. ā€œI hope that todayā€™s sentence demonstrates to the victims and those connected to this horrific event that we do not tolerate these heinous acts of violence.ā€

The FBI Denver Field Office, Colorado Springs Police Department, and ATF investigated the case.

Assistant U.S. Attorneys Alison Connaughty and Bryan Fields for the District of Colorado and, Maura White of the Justice Departmentā€™s Civil Rights Division prosecuted the case.

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U.S. Federal Courts

Title IX protections blocked in six more states

Ruling applies to Va.

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(Bigstock photo)

BY McKENNA HORSLEY | A federal judge has blocked new Title IX rules, including those aimed at protecting LGBTQ students from discrimination in K-12 schools, and sided with Republican attorneys general in several states ā€” including Kentucky. 

Chief Judge Danny Reeves of the U.S. District Court in Eastern Kentucky on Monday issued a ruling siding with Republican Attorney General Russell Coleman and his counterparts in five other states. The ruling prevents the U.S. Department of Education from ā€œimplementing, enacting, enforcing, or taking any action to enforce the Final Rule, Nondiscrimination on the Basis of Sex in Education Programs or Activities Receiving Federal Financial Assistance,ā€ which was set to begin Aug. 1. 

Kentucky Attorney General Russell Coleman (Kentucky Lantern photo by Mathew Mueller)

Coleman and the GOP attorneys general filed the lawsuit in April. At the time, they argued the Department of Education ā€œused rulemaking power to convert a law designed to equalize opportunities for both sexes into a far broader regime of its own makingā€ with the new Title IX regulations. 

Reeves limited the injunction to the plaintiff states of Tennessee, Kentucky, Ohio, Indiana, Virginia and West Virginia.

The Biden administration introduced the rules to ā€œbuild on the legacy of Title IX by clarifying that all our nationā€™s students can access schools that are safe, welcoming, and respect their rights,ā€ U.S. Secretary of Education Miguel Cardona said in a statement. The rules also would have rolled back Trump administration changes that narrowly defined sexual harassment and directed schools to conduct live hearings, allowing those who were accused of sexual harassment or assault to cross-examine their accusers.

President Joe Biden with U.S. Secretary of Education Miguel Cardona. (Official White House photo by Adam Schultz)

In their complaint, the state attorneys general said that under the Biden rule, ā€œMen who identify as women will, among other things, have the right to compete within programs and activities that Congress made available to women so they can fairly and fully pursue academic and athletic excellence ā€” turning Title IXā€™s protections on their head ā€¦ And anyone who expresses disagreement with this new status quo risks Title IX discipline for prohibited harassment.ā€ 

Established in 1972, Title IX was created to prevent ā€œdiscrimination based on sex in education programs or activities that receive federal financial assistance,ā€ according to the Department of Education.

Reeves wrote in his opinion that ā€œthe Department of Education seeks to derail deeply rooted lawā€ created by the implementation of Title IX. 

ā€œAt bottom, the department would turn Title IX on its head by redefining ā€˜sexā€™ to include ā€˜gender identity.ā€™ But ā€˜sexā€™ and ā€˜gender identityā€™ do not mean the same thing,ā€ he wrote. ā€œThe departmentā€™s interpretation conflicts with the plain language of Title IX and therefore exceeds its authority to promulgate regulations under that statute.ā€Ā 

In a press release, Colemanā€™s office said Monday that schools that would fail to comply with the new rules would risk losing federal funding. Citing the Department of Education, the office said Kentuckyā€™s public and private schools received a total of $1.1 billion in federal funding last year.

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ā€œAs a parent and as attorney general, I joined this effort to protect our women and girls from harm. Todayā€™s ruling recognized the 50-plus years of educational opportunities Title IX has created for students and athletes,ā€ Coleman said in the press release. ā€œWeā€™re grateful for the courtā€™s ruling, and we will continue to fight the Biden administrationā€™s attempts to rip away protections to advance its political agenda.ā€

A spokesperson for the department said it was reviewing the ruling.

ā€œTitle IX guarantees that no person experience sex discrimination in a federally-funded educational environment,ā€ the spokesperson added. ā€œThe department crafted the final Title IX regulations following a rigorous process to realize the Title IX statutory guarantee. The department stands by the final Title IX regulations released in April 2024, and we will continue to fight for every student.ā€

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McKenna Horsley

McKenna Horsley covers state politics for the Kentucky Lantern. She previously worked for newspapers in Huntington, W.Va., and Frankfort, Ky. She is from northeastern Kentucky.

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The preceding story was previously published by the Kentucky Lantern and is republished with permission.

The Kentucky Lantern is an independent, nonpartisan, free news service based in Frankfort a short walk from the Capitol, but all of Kentucky is our beat.

We focus on how decisions made in the marble halls of power ripple through the lives of Kentuckians. We bring attention to injustices and hold institutions and officials accountable. We tell the stories of Kentuckians who are making a difference and shine a light on whatā€™s working. Our journalism is aimed at building a fairer, healthier Kentucky for all. 

Kentucky Lantern is part of States Newsroom, the nationā€™s largest state-focused nonprofit news organization.

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U.S. Federal Courts

Federal court blocks Title IX transgender protections

Ruling applies to Idaho, La., Miss., and Mont.

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(Bigstock photo)

BY GREG LAROSE | A federal judge has temporarily halted enforcement of new rules from the Biden administration that would prevent discrimination based on gender identity and sexual orientation.

U.S. District Judge Terry Doughty of Louisiana issued aĀ temporary injunctionĀ Thursday that blocks updated Title IX policy from taking effect Aug. 1 in Idaho, Louisiana, Mississippi, and Montana.Ā 

In April, the U.S. Department of Education announced it would expand Title IX to protect LGBTQ students, and the four aforementioned states challenged the policy in federal court.

Doughty said in his order that Title IX, the 52-year-old civil rights law that prohibits sex-based discrimination, only applies to biological women. The judge also called out the Biden administration for overstepping its authority. 

ā€œThis case demonstrates the abuse of power by executive federal agencies in the rule-making process,ā€ Doughty wrote. ā€œThe separation of powers and system of checks and balances exist in this country for a reason.ā€

The order from Doughty, a federal court appointee of President Donald Trump, keeps the updated Title IX regulations from taking effect until the court case is resolved or a higher court throws out the order.

Opponents of the Title IX rule changes have said conflating gender identity with sex would undermine protections in federal law and ultimately harm biological women. Gender identity refers to the gender an individual identifies as, which might differ from the sex they were assigned at birth.

Louisiana Attorney General Liz Murrill, who filed the suit in the stateā€™s Western District federal court, had called the new regulations ā€œdangerous and unlawful.ā€ In a statement Thursday evening, she said the rules would have placed an unfair burden on every school, college and university in the country.

ā€œThis (is) a victory for women and girls,ā€ Murrill said in the statement. ā€œWhen Joe Biden forced his illegal and radical gender ideology on America, Louisiana said NO! Along with Idaho, Mississippi, and Montana, states are fighting back in defense of the law, the safety and prosperity of women and girls, and basic American values.ā€

Title IX is considered a landmark policy that provided for equal access for women in educational settings and has been applied to academic and athletic pursuits. 

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Doughtyā€™s order comes a day after a similar development in Texas, where Judge Reed Oā€™Connor, an appointee of President George W. Bush, declared that the Biden administration exceeded its authority,Ā theĀ Texas TribuneĀ reported.Ā 

Texas filed its own lawsuit against the federal government to block enforcement of the new rules, which Gov. Greg Abbott had instructed schools to ignore. Texas is one of several states to approve laws that prohibit transgender student-athletes from participating on sports teams that align with their gender identity.

Attorney generals in 26 states have originated or joined federal lawsuits to stop the new Title IX regulations from taking effect. 

Earlier Thursday, Republicans in Congress moved ahead with their effort to undo the revised Biden Title IX policy. Nearly 70 GOP lawmakers have signed onto legislation to reverse the education departmentā€™s final rule through the Congressional Review Act, which Congress can use to overturn certain federal agency actions.

Biden is expected to veto the legislation if it advances to his desk.

ā€œTitle IX has paved the way for our girls to access new opportunities in education, scholarships and athletics. Unfortunately, (President) Joe Biden is destroying all that progress,ā€ U.S. Rep. Mary Miller (R-Ill.), author of the legislation, said Thursday.

States Newsroom Reporter Shauneen Miranda in D.C. contributed to this report.

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Greg LaRose

Greg LaRose has covered news for more than 30 years in Louisiana. Before coming to the Louisiana Illuminator, he was the chief investigative reporter for WDSU-TV in New Orleans. He previously led the government and politics team for The Times-Picayune | NOLA.com, and was editor in chief at New Orleans CityBusiness. Greg’s other career stops include Tiger Rag, South Baton Rouge Journal, the Covington News Banner, Louisiana Radio Network and multiple radio stations.

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The preceding article was previously published by the Louisiana Illuminator and is republished with permission.

The Louisiana Illuminator is an independent, nonprofit, nonpartisan news organization with a mission to cast light on how decisions in Baton Rouge are made and how they affect the lives of everyday Louisianians. Our in-depth investigations and news stories, news briefs and commentary help residents make sense of how state policies help or hurt them and their neighbors statewide.

Weā€™re part of States Newsroom, the nationā€™s largest state-focused nonprofit news organization.

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