Alejandro Alvarez/Sipa USA via AP Images
Abortion rights activists rally outside the Supreme Court in Washington on April 15, 2023.
The Supreme Court ruled Friday evening that it would stay a decision from Texas District Court Judge Matthew Kacsmaryk attempting to reverse the FDA’s approval of the abortion drug mifepristone. A total national ban on the commonest form of abortion is, for now at least, off the table.
Still, this case should never have gotten this far. And Democrats should view it as a test run for a dilemma they will eventually face.
Last year, I argued against the principle of judicial review. For almost all of its history, the Supreme Court has been a reliable force for oligarchy and white supremacy—upholding slavery and Jim Crow, striking down child labor, minimum-wage, and civil rights laws, inventing corporate personhood and qualified immunity for police out of thin air, and on and on. Even on the rare occasions when it has expanded rights, it has commonly reversed itself later, as we saw with the Dobbs decision. Both of America’s greatest presidents, FDR and Abraham Lincoln, had to confront the Court head-on to deal with great crises tearing the nation apart.
Lower courts, of course, have also been guilty of similar abuses. And I couldn’t ask for a better example of judicial lawlessness than Kacsmaryk’s decision. To paraphrase numerous gobsmacked legal experts, the opinion is a dog’s breakfast of right-wing Facebook memes and anti-abortion lies.
The drug was approved 23 years ago, the relevant statute of limitations is six years, and Congress also passed a law in 2007 legalizing prior FDA approvals, but Kacsmaryk went ahead anyway. Even if the statute of limitations hadn’t run out, the courts do not have the power to revoke FDA approvals, only to instruct them to restart the drug approval process. His evidence that mifepristone is harmful included anonymous posts from the blog Abortion Changes You.
The case was also filed by a bunch of conservative doctors, not people who had actually taken mifepristone, so Kacsmaryk cooked up a completely preposterous theory of legal standing, claiming that the doctors were injured because they might theoretically have to treat people who got sick from taking the drug. In reality, mifepristone is exceptionally safe—less dangerous than Tylenol, Viagra, or insulin—but more to the point, the principle instituted here would allow all kinds of nonsense lawsuits. Under this logic, an urbanist doctor could sue to ban the sale of automobiles because he doesn’t want to treat car accident victims.
The structure of the decision process is also wildly illegitimate. Kacsmaryk is the only federal judge in Amarillo, so all the most deranged right-wing activists file their garbage lawsuits in that city because they are guaranteed to get him, and he is nearly guaranteed to rubber-stamp whatever crackpot policy outcome they want. One guy is claiming dictatorial authority over American prescription drug policy by exploiting a quirk in the anachronistic court system.
The ruling would be equally legitimate if he had scrawled “abortion bad” on the back of a napkin in his own excrement.
Right-wing extremists have seized partial control of the federal judiciary, and are exploiting America’s hypertrophied judicial power.
The Fifth Circuit decision partly upholding Kacsmaryk did grudgingly admit the statute of limitations problem, but otherwise endorsed his standing theory, as well as his suggestion that the Comstock Act—a 19th-century law banning the mailing of pornography, contraception, and abortion drugs that has been a dead letter for decades—should nationally ban abortion entirely.
This is a political struggle that has nothing to do with the law. Right-wing extremists have seized partial control of the federal judiciary, and are exploiting America’s hypertrophied judicial power to stuff their political goals down the throats of a population that is overwhelmingly opposed to them. Ever since the Dobbs decision, a massive pro-choice backlash has fueled consistent Democratic victories in elections—particularly since state-level abortion bans have exposed the grotesque medical consequences of withholding what is a core part of maternal medicine. Probably the only way Republicans could get a national abortion ban is through legal rule-by-decree, by following Kacsmaryk’s lead.
A small but growing number of Democrats are facing up to the fact that confronting these lawless right-wing forces in the courts will require equally radical moves in response—including ignoring court decisions outright if they are sufficiently egregious. So far, Sen. Ron Wyden (D-OR) and Rep. Alexandria Ocasio-Cortez (D-NY) have called for the Biden administration to simply ignore the decision, while Sens. Elizabeth Warren (D-MA) and Mazie Hirono (D-HI) have called for Biden to instruct the FDA to decline to enforce it, which the agency can do legally. Even Nancy Mace, a South Carolina Republican congresswoman, called the Kacsmaryk ruling “unconstitutional” and encouraged the Biden administration to ignore it.
It’s encouraging to see Ocasio-Cortez, Warren, Wyden, and Hirono arguing that Democrats should fight fire with fire. But the rest of the party is still lagging behind.
The Biden administration quickly denied that it would ignore the Kacsmaryk decision, telling Talking Points Memo: “There is a process in place for appealing this decision and we will pursue that process vigorously and do everything we can to prevail in the courts.” Yet clinging to procedural norms will only empower lawless extremist judges. Kacsmaryk and the Fifth Circuit already shredded procedural norms with their mifepristone decisions. Following the rules signals to Trump judges that Biden will cave and let them do what they want.
Meanwhile, the Democratic majority on the Senate Judiciary Committee is currently helpless because the party neither pressured Sen. Dianne Feinstein (D-CA) into resigning nor removed her from the committee, and she now has shingles and hasn’t been seen since February. (As my colleague David Dayen explains, Democrats could blunt the effect of her absence by changing the rules to allow nominees with tie votes in committee to be discharged to get a floor vote, but this would require 50 votes to pull off, including Joe Manchin and Kyrsten Sinema.) The chair of the committee, Sen. Dick Durbin (D-IL), is also honoring the ludicrous “blue slip” tradition that allows Republicans to veto any nominees in their home states, despite the fact that Republicans already violated the rule under Trump.
What is needed is an aggressive political attack on judicial power. It is simply intolerable for a handful of reactionary judges and activists to seize control of all pharmaceutical regulation, trampling over law and precedent in the process. If they achieve that goal, imagine what they might do next. Kacsmaryk and his ilk need to understand that they do not get to run the United States as judicial monarchs.
