Graeme Sloan/Sipa USA
Senator Ron Wyden (D-OR) speaks to media at the U.S. Capitol on January 23, 2023.
In the Dobbs decision, Justice Samuel Alito held that “the authority to regulate abortion is returned to the people and their elected representatives.” The Wall Street Journal editorial board agreed, claiming the decision “returned the profound moral issue of abortion to the states and democratic assent, where it has always belonged.” As a statement of current legal reality, this was true. Sweeping and viciously punitive new laws outlawing abortion have thus far been passed at the state level in places where conservatives control government. The opposite has been the case in states with liberal control, where laws protecting abortion have been passed. And state initiatives last year put the question to voters, who overwhelmingly sided with the position of granting a right to an abortion.
But in terms of the intentions of the conservative movement, Alito and the Journal were lying. The plan is and always has been to ban all abortion at the national level, by hook or by crook. That is exactly what they are attempting to do right now. The strategy is an attempt to get one particularly feral Trump-appointed federal judge to ban abortion pills, which now make up more than half of all abortions in the U.S. This would be a major step on the path to a national abortion ban, and it would not come from the people or their elected representatives, but directly from the courts.
Some months ago, I argued against the very concept of judicial review. With rare exceptions, the Supreme Court has been a reactionary institution using its rule-by-decree powers to strike down laws protecting civil rights, unions, voting rights, and so on. Other peer democracies do not have nearly so powerful courts, and survive just fine.
Now Sen. Ron Wyden (D-OR) is taking this line of thinking to heart, at least to a limited extent. In a recent speech, he argued that should this conservative judge try to ban abortion pills, President Biden should take a drastic step. “The power of the judiciary begins and ends with its legitimacy in the eyes of the public,” he said. “If that's what the ruling would do, the answer is to ignore it, at least until there is a final ruling on the underlying matter by the Supreme Court.”
Some details: The Trump-appointed judge is Matthew Kacsmaryk, serving in the North District of Texas, and the case is Alliance for Hippocratic Medicine v. FDA. The plaintiff is an anti-abortion group attempting to force the FDA to reverse its approval of mifepristone (one of the two ingredients in abortion pills), which happened in 2000.
On the legal merits, the lawsuit is completely preposterous. There is no evidence that the FDA did anything untoward during the approval process. As a factual matter, mifepristone is safe and effective—indeed, far safer than carrying a child to term, especially in the United States where the maternal mortality rate is nearly 20 times higher than in the Netherlands. And as Ian Milhiser points out at Vox, even if the FDA had messed up, Congress passed a law in 2007 explicitly legalizing every drug approval before that date, and the relevant statute of limitations is six years.
Legal observers expect this will make little difference to Kacsmaryk, whose (often openly bigoted) opinions read like the Facebook posts of an unusually bonkers Fox News grandpa.
Imagine if Kacsmaryk declared Donald Trump to be president.
The structure of the Alliance case is also a gross affront to democracy and the rule of law. Thanks to a quirk of the legal system, every single federal case filed in the city of Amarillo gets handed to him, as he is the only district court judge serving in that area. Right-wing activists know this, and file their most bananas lawsuits there, because they know Kacsmaryk will most likely rubber-stamp whatever they want. The extremist Supreme Court majority also knows this, and often lets his rulings stand for months—while decisions they don’t like are quickly struck down through the shadow docket system.
This situation is intolerable. Governments are supposed to derive “their just powers from the consent of the governed,” but here we have one single federal district judge out of 667 potentially seizing control of American prescription drug policy on behalf of a tiny group of extremists.
Even if one believes in judicial review in principle, there must be a point at which a judge can go to far. Imagine if Kacsmaryk declared Donald Trump to be president, for instance. Banning abortion pills by decree is not far from such a possibility in terms of violating the separation of powers. The Biden administration would not be respecting the rule of law by obeying a ruling that blatantly violates multiple laws in a way a five-year-old could understand.
Wyden’s proposal of course leaves open the possibility that the Supreme Court will agree with Kacsmaryk. But he is deranged even by the standards of Trump-appointed judges, and the fact that Biden stood up to him might convince conservative justices not to push their luck.
In any case, Democrats are going to have to confront right-wing judicial tyranny sooner or later, and this would be a great step forward. When I wrote my piece last year, I knew I was offering an outside-the-mainstream idea that I thought would take several years for anyone of consequence to pose as a possibility. But the right-wing judicial coup has accelerated the timeline, and now a leading U.S. senator is raising the idea. Hopefully, others will join him.
