Sherrill proposing legislation to prevent ‘judge shopping’

The recent court action by a federal judge in Texas invalidating the Food and Drug Administration’s approval of an abortion drug across the country is prompting U.S. Rep. Mikie Sherrill to introduce legislation that would prevent what she calls “judge shopping.”

On April 7, U.S. District Judge Matthew Kacsmaryk, acting in the case Alliance for Hippocratic Medicine v. Food and Drug Administration, suspended federal approval of mifepristone, the drug used in the most common method of abortion. On the same day, U.S. District Judge Thomas O. Rice ordered the opposite in a different case in Washington. On Friday, U.S. Supreme Court Justice Samuel Alito placed a hold on Kacsmaryk’s ruling until midnight Wednesday.

Speaking at a news conference Thursday at Planned Parenthood in Montclair, Sherrill said Kacsmaryk’s ruling “is another step in the far-right’s agenda to attack women’s rights, threaten our lives and diminish our economic future.”

“That’s why today, I am announcing new legislation that I will be introducing in the coming days to prevent something referred to as ‘judge shopping,’” she said. “Increasingly, conservative activists file lawsuits in single-judge divisions where they are all but assured to get a favorable ruling. That was the playbook anti-choice advocates followed by filing this case in the Amarillo division of the Northern District of Texas. They already know their judge and they already know the likely outcome.”

Sherrill described the case on mifepristone in terms of life and death.

“The United States has a maternal mortality crisis, especially among women of color in comparison to our peer nations around the world,” she said. “Our current maternal death rate is now as high as it was almost 60 years ago. This dangerous move to undermine providers and their ability to care for their patients was foregone when the plaintiffs shopped around and chose to file their case with Judge Kacsmaryk. My bill would change that practice by requiring plaintiffs taking nationwide injunctions – nationwide injunctions – to file their cases in divisions with more than one judge, preventing plaintiffs from shopping for judges and predetermining the outcome for their case.”

The congresswoman noted that New Jersey was the first state to codify reproductive rights in state law after the U.S. Supreme Court’s ruling last year in Dobbs v. Jackson Women’s Health Organization overturned the 1973 landmark ruling in Roe v. Wade, which generally protected women’s right to abortion.

“As attacks on reproductive rights have raged on, New Jersey has continued to protect women's autonomy and respect the decisions they make with their doctors,” Sherrill said. “What's so extreme about this decision coming out of Texas is that it threatens abortion access not just in Texas, but access here in New Jersey.

“So let me say again, because it bears repeating, should this really go into effect, New Jersey women will have restricted access when seeking care via mifepristone.”

Speaking at the news conference on Thursday, Jeanne LoCicero, the legal director of the ACLU NJ, acknowledged that the Texas decision had unleashed chaos as a series of legal actions were taking place. “What we do know is that if the current rulings stay in place, mifepristone is going to be severely restricted,“ she said.

Dr. Elizabeth Talmont, chief project officer at Planned Parenthood of Northern, Central and Southern NJ, explained that the Texas decision will harm her New Jersey patients by restricting their options. 

“Mifepristone has been safely and effectively used by 5 million people in this country since its FDA approval in 2000,” Dr. Talmont said. “There is overwhelming evidence that this is safe and effective for anybody who wants it, with over a 99% safety profile. What is happening in the courts has nothing to do with safety nor the efficacy of medication.”

She added: “This is about imposing one person’s or one group of people’s beliefs on another. And it directly harms those who need access to safe, nonjudgmental abortion care.”

Roslyn Rogers Collins, president and chief executive of Planned Parenthood Metropolitan New Jersey, said, “Even in states like New Jersey where abortion remains safe, legal and available without restrictions, it is clear that there is an agenda to dismantle all access around the country.” 

Joseph Chiodo III, vice president of medical affairs at Agile Therapeutics, warned that this case could hinder research and development at pharmaceutical companies.

“Experts warned us that this case could upend decades of precedent,” Chiodo said. “Unfortunately, this is setting the stage for a single individual that is second guessing scientific decisions made by a rigorous team at the FDA. This is not what we want as a society, where we have political motives and judges making clinical and scientific decisions. This is a dangerous precedent that could impact innovation and investment.”