One of the sharpest questions from the judge was whether the anti-abortion activists could point to another analogous case when a court intervened in the way he is being asked to intervene here.
Baptist conceded there was none and blamed FDA delays in addressing citizen petitions and challenges. Later in the hearing, Baptist raised other times the FDA had suspended or withdrawn drugs based on court cases in other contexts, arguing those cases showed that Kascmaryk had the authority to grant the plaintiffs' request.
He brought up Dobbs early on in the hearing and raised it specifically in connection with a friend of the court brief filed by 22 GOP-led states supporting the challengers. If Kacsmaryk has any sore feelings over the blow up around his efforts to keep Wednesday's hearing plans quiet, he didn't show them at the proceedings.
Left unmentioned by the judge was the fact that he tried to delay the announcement of the hearing until the evening before, which would have made it difficult for members of the public and the media to attend Wednesday's proceedings. When there was blowback to The Washington Post reporting about his plan -- laid out in a private teleconference with attorneys where he pointed to death threats and harassment that had been directed to the courthouse staff -- he announced the hearing on Monday.
While he was arguing, Schwei, the DOJ attorney, requested that the judge -- if he were to rule against the FDA -- to immediately put that ruling on pause so it could be appealed. The judge stopped short of promising an automatic stay in the event of an adverse ruling, but he acknowledged he understood what DOJ was asking for.
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