Two published studies cited by conservative U.S. District Judge Matthew Kacsmaryk last year in his decision suspending federal approval of the abortion pill mifepristone have been retracted by Sage Publications.
The scientific publisher said that independent experts “identified fundamental problems with the study design and methodology, unjustified or incorrect factual assumptions, material errors in the authors’ analysis of the data, and misleading presentations of the data that, in their opinions, demonstrate a lack of scientific rigor and invalidate the authors’ conclusions in whole or in part.”
Sage also found that the study authors did not disclose their affiliation with the anti-abortion Charlotte Lozier Institute. One such author, James Studnicki, is vice president of the organization.
“Sage confirmed that all but one of the article’s authors had an affiliation with one or more of Charlotte Lozier Institute, Elliot Institute, and American Association of Pro-Life Obstetricians and Gynecologists, all pro-life advocacy organizations, despite having declared they had no conflicts of interest when they submitted the article for publication or in the article itself,” the retraction notice says.
The studies falsely asserted that abortions using mifepristone have resulted in a high rate of emergency room visits compared to surgical procedures, and that individuals experiencing complications from medication abortions are often mistakenly categorized as having had miscarriages. Independent experts reviewing the research found that such findings were “unsupported,” “misleading” and “unreliable.”
This research played a crucial role in enabling the plaintiffs to initiate the lawsuit, as they argued that they had legal standing due to the potential harm they would face in treating patients experiencing complications after medication abortions. Kacsmaryk cited one of the now-retracted studies in support of the plaintiff’s standing. However, with the research supporting this harm now retracted, the plaintiff’s standing to bring the case at all is threatened.
Kacsmaryk was appointed by President Donald Trump in 2017 and is affiliated with the conservative legal organization the Federalist Society. Prior to his judicial appointment, he served as deputy counsel for the First Liberty Institute, a right-wing religious liberty law firm engaged in various legal battles concerning reproductive health care. Conservative clients have increasingly filed cases in his district to ensure that he — and the conservative Fifth Circuit, if the case is appealed — will be the ones to review the case. This practice, called “forum-shopping,” has elicited concern from the U.S. Department of Justice, which has attempted to transfer cases out of his district.
“The case does not arise from any event or omission occurring in the Northern District of Texas, much less the Amarillo Division,” says one of the DOJ motions. “Plaintiffs’ decision to forum shop by filing in the Northern District — and, in particular, in the single judge Amarillo Division, which has no connection whatsoever to this dispute — undermines public confidence in the administration of justice.”
In April, Kacsmaryk suspended the U.S. Food and Drug Administration’s approval of mifepristone, which the Guttmacher Institute says accounted for more than half of U.S. abortions in 2022. In August, the U.S. Court of Appeals for the 5th Circuit reinstated the initial approval of the abortion pill, but reimposed pre-2016 limitations on the medication that the FDA had since removed. These restrictions include prohibiting its prescription via telemedicine and dispensation via mail, which would greatly inhibit people’s access to the abortion pill.
The American College of Obstetricians and Gynecologists (ACOG) says that mifepristone is “exceedingly safe and effective.” In May, the ACOG and a coalition of other medical organizations filed a friend-of-the-court brief with the U.S. Court of Appeals for the Fifth Circuit urging the court to preserve access to the abortion pill. “Denying or limiting access to mifepristone will not make patients safer—it will actively jeopardize their health,” the health organizations said in the brief.
The appeal of the 5th Circuit’s ruling, slated to be heard by the U.S. Supreme Court on March 26, is anticipated to center around the issue of standing.
In a friend-of-the-court brief filed to the Supreme Court, the American Civil Liberties Union (ACLU) said that Kacsmaryk had “cited Respondents’ witnesses’ untested declarations and outlier studies to justify standing, establish irreparable harm, and second-guess FDA’s scientific judgment.”
The retraction of the research cited by Kacsmaryk, less than two months before the Supreme Court hears oral arguments, should bolster this argument.
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