Resisting Kacsmaryk

Today on TAP: In Los Angeles, both the DA and the sheriff say there’ll be no arrests or prosecutions when women take abortion pills, regardless of court rulings.

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The blue states are stocking up on abortion pills, but that’s only the beginning of the backlash against the latest attempted curtailment of women’s health and bodily autonomy from the anti-choice right.

Responding to the ruling by U.S. District Judge Matthew Kacsmaryk that overturned the FDA’s approval of the abortion pill mifepristone, which has been used safely by millions of American women since the FDA authorized its use a quarter-century ago, three Democratic governors—Washington’s Jay Inslee, Massachusetts’s Maura Healey, and California’s Gavin Newsom—have announced their respective states will purchase either that drug or, in California, the second widely used abortion pill, misoprostol.

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I may be unduly optimistic in thinking this, but these are rainy-day purchases. I say that because I’d be surprised if the Supreme Court—yes, even this Supreme Court—upholds Kacsmaryk’s ruling, which is likely to come before it in the not-very-distant future. I wouldn’t be surprised if the dynamic (or dinosauric) duo of Thomas and Alito vote to uphold it, but I’d wager at least ten (10) (X) dollars that the three Democratic appointees will be joined by the chief justice and at least one other associate in striking it down. There are so many reasons the justices can choose to override Kacsmaryk, including the dubious standing of the plaintiffs (none of whom were women who’d taken the pill), the judge’s misstatements of fact in arguing the perils to health that mifepristone allegedly posed, and a host of Supreme Court precedents that have held that courts must defer to the scientifically grounded decisions of federal agencies that Congress empowered to make scientifically grounded decisions. None of that should deter Alito and Thomas, but I suspect at least one of the three Trump appointees on the bench, and possibly more than one, will welcome the lack-of-standing issue as a way to overturn Kacsmaryk without actually taking a position on abortion as such. That, in turn, leads me to think that there will be a majority decision overturning Kacsmaryk, and a concurring opinion from at least the three Court liberals that also affirms the right to choose.

Meanwhile, the blue-state pushback against last Friday’s judicial jihad goes beyond the stocking-up of pills. In this case, though, it’s not really a state. At the same time that California Gov. Newsom was announcing the pill purchase, officials in the state’s (and the nation’s) largest county—Los Angeles, population ten million, which makes it larger than about 40 states—announced they were going one step further. Leaders of the County Board of Supervisors, as well as Los Angeles City Mayor Karen Bass, held a press conference with the leader of L.A.’s Planned Parenthood chapter and declared the county a “safe haven” for abortion rights. What made this particularly groundbreaking was the separate announcement by L.A. County’s elected district attorney that his office would not prosecute cases involving individual reproductive care, as well as an announcement from the county’s elected sheriff that sheriff’s deputies “will not cooperate with attempts to prosecute people who are seeking abortion care.”

Presumably, that means that if the Supreme Court upholds Kacsmaryk but Angelenos are still able to purchase or otherwise obtain mifepristone, no arrests or prosecutions will follow. It may also mean that no action would be taken against pharmacies still selling the drug if they’re somehow able to obtain it.

Echoes here of Andrew Jackson’s probably apocryphal comment that Chief Justice “John Marshall has made his decision; now let him enforce it!”

But if this is now effectively the law in America’s largest county, why not in its second-largest (Cook County, Illinois, home to Chicago)? Why not in New York’s boroughs, in San Francisco, in Seattle’s King County, and so on down the liberal line? The United States is no stranger to the geography of resistance, as several Northern states and cities demonstrated in the 1850s by their resistance to enforcing the Fugitive Slave Act. As our current not-quite civil war rolls on, that’s a pretty good model to follow.

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