David Erickson/AP Photo
Demonstrators gather in support of access to abortion medication outside the federal courthouse in Amarillo, Texas, March 15, 2023.
I did something this semester that I’ve never even considered doing before. I apologized to my students. Not for being late grading their papers or wasting valuable in-class time futzing with technology that it’s perhaps reasonable for them to expect me to handle fluidly. I apologize for that all the time. No, this was more general, more sweeping. I apologized on behalf of my generation, especially my generation of feminists and gay folks, for the mess we seem to have made of things. And I apologized for our great privilege, which we almost never notice: the privilege of having come of age at a time when things seemed to be getting better, at least on some fronts; a time when the forces arrayed against us seemed like they might be permanently beatable.
I was in grade school for Roe, barely politically conscious for the Hyde Amendment, befuddled by Bowers, out and proud in time for Lawrence and Obergefell. Even though every second person I went to college with was headed into investment banking and ready for their close-ups with The Wall Street Journal, I had the sense—another privilege, I see it now—that the right-wing victories were temporary, that their flame would die back someday soon and a wind of change would carry its noxious gray smoke away. That soon enough, if not today, a president who redeemed the Klan killing of Chaney, Goodman, and Schwerner, as Ronald Reagan did in kicking off his campaign in Neshoba County, Mississippi, where the civil rights activists were killed, would receive his just rebuke.
What, in the age of federal Judge Matthew Kacsmaryk, of Dobbs and Trump, rampant anti-trans lawmaking, and the recrudescence, for fuck’s sake, of anti-gay and anti-queer “groomer” panic, can someone like me in good conscience say to the class of ’23?
To be clear, as of Easter weekend, Judge Kacsmaryk’s ruling, enjoining the Food and Drug Administration’s 23-year-old approval of the medication-abortion drug mifepristone, has not yet gone into effect and will not for at least seven days. The Biden administration will immediately appeal it to the Fifth Circuit federal appeals court—which Charles Pierce, writing for Esquire magazine, called “the blown fuse of American jurisprudence.” A different federal judge, sitting in Eastern Washington, responded to the pleas of blue-state attorneys general by ordering that the legal status of mifepristone not change in the 17 states, plus the District of Columbia, that were parties to the suit. A higher court will have to untangle these contradictory rulings.
But this is not a good situation. Somebody I don’t follow on Twitter, but whose thoughts meandered my way, insisted that the U.S. Supreme Court would ultimately vote 6-3 against Kacsmaryk and in favor of the continued availability of mifepristone and the other drug typically utilized in the medication abortion protocol, misoprostol. I don’t believe it. Judge Kacsmaryk is just a slightly more rough-around-the-edges version of any judge in the current conservative supermajority on the nation’s highest court. In fact, he sounds no less partisan, no less like he’s reading from a far-right activist anti-feminist and anti-gender-nonconforming playbook, than Justice Alito in the Dobbs opinion or Justice Thomas in his Dobbs concurrence.
Does Judge Kacsmaryk’s ruling ultimately rest simply on the fact that, in the judge’s view, mifepristone is intended for an “indecent or immoral purpose”?
The Texas ruling on mifepristone is incoherent. Judge Kacsmaryk jumps back and forth between arguments for doctors’ rights—mostly, their right not to suffer “pressure and stress” from caring for patients who suffer the (mostly made-up) negative consequences of medication abortion—and for the well-being of hypothetical abortion seekers, who are not asking the courts to protect them out of access to a drug regimen that has been proven safe. He relies implicitly on a belief that medication abortion “starves [an] unborn human”—his preferred language in place of the word, “fetus,” which he disdains—“to death,” and so it can’t be medicine approved by the FDA.
Judge Kacsmaryk explains away the decades-long gap between initial approval of mifepristone and the litigation under review with a conspiracy theory about the Clinton administration pressuring the FDA’s experts and bureaucrats. He explains away the absence of plaintiffs claiming actual harm from the drug, like people who had difficult abortion experiences, as an artifact of their trauma after “suffering from chemical abortion.” And he uses cherry-picked data, leaning on a Finnish study in a way that one of its authors suggested was “pure nonsense.”
Whose interests are really at stake here? The doctor plaintiffs’, the injured but absent abortion seekers’, or the not-fetuses’? What’s the real basis for withdrawing government approval for this drug? Is it the conspiracy that drove too-hasty decision-making (later corrected, presumably, by years of practice, further administrative review, and scads of persuasive research)? Or is it the inherent danger of this drug, or rather the two-drug regimen of which it is a part—again, far from proved, when 0.31 percent of patients have serious complications, as compared with 1.4 percent of patients who experience childbirth? Is it the fact that fetuses are harmed, inevitably, in a procedure that is designed to produce miscarriage in the first trimester of a pregnancy? Or the racist, and/or eugenicist, nature of abortion itself? (Cue Justice Thomas. Cue popular anti-abortion slogans that, like the charges about women’s vulnerability in this case, are almost never articulated by the people in whose names they have been framed, by Black and brown women.)
Perhaps, in the language of the curiously undead legislative specter from the 19th century known as the Comstock Act, Judge Kacsmaryk’s ruling ultimately rests simply on the fact that, in the judge’s view, mifepristone is intended for an “indecent or immoral purpose”? (“The plain text of the Comstock Act controls” is a passage I really did not think I would see in a 21st-century federal court opinion, with a knife-in-the-back citation to the Supreme Court ruling protecting gay and trans rights at work, Bostock v. Clayton County [2020].)
But the incoherence won’t matter. Whether Kacsmaryk is being wily or sloppy, his spaghetti-against-the-wall opinion will give the six justices appointed by Republican presidents plenty of pasta with which to serve up a rights-restricting opinion of their own. Even those of the justices who find some of the judge’s language distasteful or excessive will go along with his conclusions on the basis of alleged bureaucratic missteps, if need be, rather than a who-killed-Vince-Foster-style tale of skullduggery or by insisting that Comstock lives.
And make no mistake: This is likely the end of Griswold and the right to contraception, in action if not in name. If one medication can be stripped of FDA approval to stop a childbirth, then any other drug can, even those with a separate purpose; to Kacsmaryk and his ilk, they’re all abortifacients.
This renaissance of misogyny and homophobia, this increasingly terrifying regulation of gendered self-expression, meted out under color of law, is what the extreme-conservative Supreme Court justices are there for. Maybe Trump doesn’t care one way or another about any of these issues, any more than Reagan did, or the first President Bush. But he knows, just as George H.W. Bush did when he named Justice Thomas to the bench, and George W. Bush did when he named Justices Roberts and Alito, that sex and gender revanchism are ties that bind large constituencies to the Republican Party, when that party has little else to offer them. Every one of Trump’s judicial nominees was vetted by the Federalist Society, the right-wing network that indoctrinates conservative lawyers from the time they are in law school forward. (Talk about grooming!) Disdain for the line of federal court opinions that produced Roe and Obergefell is the stuff of parlor games at Federalist Society coffee klatches. In quieter moments, perhaps at mountainside retreats or private yachts with Hitler memorabilia–collecting billionaires, the agenda is to fashion a far-right conservative subculture within the legal profession.
Faced with a Supreme Court ever more deeply inimical to democratic will, the Biden administration will have a tough choice to make. Will the president and his FDA fight or fold? When, if ever, will they measure the state of reproductive rights and health in the United States as a screaming crisis? When will they call out the most powerful of today’s federal judges for the partisan hacks they are, trained and groomed, bought and sold?
And the rest of us? To my students, once again, I’m sorry. People my age thought the arc of the moral universe was bending the right way. Sometimes it did. But we didn’t get it, how hard the fight would be, or how hard the swing backward could be. We have work to do.
