AMA/PhRMA v. Federalist Society – Let The Witch Trials Begin!

Posted on | March 15, 2023 | 2 Comments

Mike Magee

The law is a funny thing. When British settlers first arrived on our eastern shores in 1607, their clergy-led bosses struggled to establish the rules while “clinging precariously” to life itself. Where did the rules come from in the decades that followed? Some were derived from folk law. Others were indigenous (unique to the new land and circumstances.) And others still evolved from ever-changing belief systems.

The land these settlers came from had lawyers who bridged the gap between an aristocracy that created the laws and a citizenry subjected to the laws. As for judges, they were recruited from the lawyers guild, a literal “bench” team. Cynics say that purposeful complexity and inaccessible language and syntax provided lawyers an “excuse for existing.”

As societies grew in size and complexity, the need for fresh settlers reinforced that the laws and ordinances should not be needlessly bloodthirsty, or in British parlance, “contrary or repugnant to the laws and statutes of this our realm of England.” And while most all acknowledged England as the source point for the law, the stubbornly independent colonists molded a wide range of different systems as varied as the many colonies that had been granted charters to operate.

But “stubbornly jealous of self rule”, as one expert explained, “colonial law was more a child of English law than a subordinate.” Power and privilege, and maintenance of the status-quo, was reinforced by those who made the law. In the fertile land rich colony of Maryland, for example, slaves were confirmed a “capital asset” able to be sold, gifted, and used as collateral for loans as early as 1671.

Bad laws beget worse laws. Take for example the fallout of the 1896 decision of Plessy v. Ferguson that, in establishing the policy of “separate but equal” sent our nation down a trail to apartheid. Should we have been surprised then that some years later, as Berkeley historian Leon F. Litwak recounted, one Will Mathis, a white man convicted of a capital crime, demanded that he not be forced to use the same gallows rope as had just been sullied by the neck of a black victim – so thorough and penetrating was the stain of that prior decision as to spawn a demand for segregation by execution.

Presidents throughout our history have been frequently disappointed with the decisions made by the judges they themselves appointed. That is likely not the case with Donald Trump, whose appointees (Neil Gorsuch/2017, Brett Kavanaugh/2018, and Amy Coney Barrett/2020) all carried the seal of approval of uber-conservative Federalist Society – a vast political network with chapters at 200 law schools with 10,000 student members and 65,000 lawyer members in 90 U.S. cities. Few were surprised by their role in overturning Roe v. Wade as part of the recent Supreme Court Dobbs v. Jackson Women’s Health Organization decision. Nor was it surprising when Clarence Thomas signaled on the day of the decision that this was just the beginning.

As suggested above, bad law(yers) beget worse law(yers). And that has proven to be the case in 2023. Back in the middle of Trump’s Federalist Supreme Court takeover, another lesser Justice received Senate approval. His confirmation hearing revealed that he was a Conservative Christian, anti-abortion warrior and the co-founder of the Fort Worth, Texas chapter of the Federalist Society. His name is Matthew Kacsmaryk.

His back story includes his 17-year old sister’s traumatic teen pregnancy, birth and adoption of the child, followed by uber-conservatism ever since. The Amarillo Division of the US District of Northern Texas was chosen deliberately to argue a case sponsored by members of the Republican Governor’s Association for one reason, and one reason alone. Its only district superior court judge is Matthew Kacsmaryk. Judge shopping tactics have long to part of the Federalist Society’s playbook.

The case, which began this week asks the court to overrule the FDA which, in 2000, approved the safe and effective use of mifepristone as part of a two drug regimen to induce abortion. 53% of all US abortions were medication induced in 2022, up from 37% just five years earlier. The plaintiffs say the FDA should have never approved it and that they ignored serious side effects. The AMA and its Federation members, the Public Health community, and the FDA say that the drug, with two decades of use, has proven the regimen is safe up to 10 weeks gestation.

Pharma execs like Jeremy Levin point out that there is more at stake here than curtailing a small radical fringe element. In his words, “Here, you’re not just challenging the right for a woman to treat a pregnancy or to treat miscarriage; you’re also now challenging the primacy of the FDA to approve vast, important medicines that are critical to our society’s health, and that has a fundamental impact on the entire nation.”

Former FDA associate commissioner Marc Scheineson is a bit more blunt. He says, “This is probably round one of a 12-round heavyweight boxing match. You want the court to decide what drugs are safe and effective? Well, good luck to all of us.”

Legal historian, Lawrence Friedman, reminds us that “Life in the colonies was precarious at first…In the beginning, in tiny, starving, beleaguered settlements, there was nothing like a sophisticated notion of separation of powers. The same people made rules, enforced them, handled disputes, and ran the colony.”

The Federalist Society’s attempted coup, with its tiny Amarillo size outposts across the nation linked by the Internet and Puritan style passions, is looking to recreate a vertical network with exclusive, Jurist-directed control over rules and regulations for a resistant vast majority. That’s the kind of system that ultimately led to witches’ conflagrations in earlier times.

Wise law however is a “rational instrument” and “underlies all modern systems” We are on a slippery legal slope at the moment. We would do well to remember that “all modern societies are governed by and through laws.”

Comments

2 Responses to “AMA/PhRMA v. Federalist Society – Let The Witch Trials Begin!”

Larry McGovern
March 16th, 2023 @ 6:55 am

Mike –
Among all your wonderful, informative posts, I believe this is one of your best!! And I don’t think it’s only because I am a lawyer.
Slippery slope indeed, especially if Kacsmaryk decides the medical abortion case as we fear he will, then gets appealed to the ultra conservative 5th Circuit Court of Appeals, then on the the Federalist Society controlled Supreme Court. While increasing the number of judges on the Supreme Court is not to be done lightly (though has been done more than once in the past), this is certainly something to be seriously considered now.
Another point: Spineless Democratic senators should have prevented the appointment of obviously unqualified Kacsmaryk!
Mike Magee
March 16th, 2023 @ 9:20 am

Thanks, Larry! I’m not certain that either the AMA Federation or PhRMA has fully awakened to this threat. But if successful, these professional spaces are about to have a rude awakening! Best, Mike