Something is really out of kilter in the land of the free and the home of the brave.
You’ve probably heard about an imminent decision on abortion. The reason I’m writing about it now is that no matter what I’ve read or heard, I still haven’t come across a sensible explanation concerning how this situation evolved—let alone how it can stand in 21st Century America.
There’s a single judge in Texas, a guy named Matthew Kacsmaryk, who’s pretty definitely about to tell women and the medical professionals who care for them—throughout the US, regardless of where they live or what their state laws say—that the abortion pill the FDA approved twenty-three years ago is—well, verboten.
How does one man (a D Trump appointee, part of the wondrous lasting legacy) get to make this far-reaching decision? The medication in question—mifepristone—is currently used in a majority of abortions in the US. It’s been found to be reliable and safe, with such low risk that the FDA has been loosening the restrictions involving its use.
If anyone needs a quick refresher, this one-man uber-decision-maker isn’t what the radical Supreme Court majority said would happen when they ignored both precedent and overwhelming public sentiment and overturned Roe v Wade last year. Then the prevailing message was that they were simply returning the decision to the states, where they claimed it belongs.
Since then, we’ve had a hodgepodge of state legislatures trying to outdo each other in depriving women of their health care decision-making. The result has been chaotic and tragic for many women. And the toll is mounting.
Did you hear anyone say, “No! This decision is too important to be left to the state legislatures. I know a guy in Amarillo who’s just the right person”?
Neither did I.
But the folks at the right-wing organization Alliance Defending Freedom thought so. They’re getting the wise counsel of Erin Morrow Hawley, who happens to be the wife of Sen. Josh Hawley (R-MO), famously caught on camera running for his life during the Jan. 6 Insurrection.
The Alliance Defending Freedom calls itself “a Faith-based 501(c)(3) that legally defends the First Amendment rights of free speech & religious liberty, the sanctity of life, and the family….” and says it is necessary because “Across the United States, Christians are being punished for living by their convictions.”
The Southern Poverty Law Center calls it a “hate group” because of its extremist views regarding LBGTQ people, and others.
Why did the group turn to Amarillo? It was not because that jurisdiction had anything to do with the case, I learned from an excellent Slate article written by legal journalists Dahlia Lithwick and Mark Joseph Stern titled “Dobbs Was Always Just the Beginning.”
Rather, it was because Judge Kacsmaryk is the only judge there—and they knew his radical views from his previous work for a right-wing group where he worked to undermine not only abortion, but also LGBTQ rights and contraception.
With regard to contraception, Lithwick and Stern write that Kacsmaryk “once scorned ‘secular libertines’ who sacrifice children to their ‘erotic desires.’”
The writers state that “Since his confirmation, he has gained a reputation as perhaps the most lawless jurist in the country.” He even defied a Supreme Court decision that protected the rights of LGBTQ employees.
Let’s pause here and note that as long as there are judges like this around, there must be some way to prevent plaintiffs from seeking a specific jurisdiction for their case in order to “shop” for a specific judge who they’re pretty sure will rule in their favor. Mark this as a much-needed court reform.
I keep thinking of the image of Lady Justice (which happens to be the title of a very good book that Dahlia Lithwick wrote), blindfolded, holding scales that are balanced.
Lady Justice: Meet Judge Kacsmaryk. Good grief!
Back to the scary issue that’s about to worsen an already horrific situation exponentially.
Lithwick and Stern say this potentially far-reaching case should not even be called a “case” because the plaintiffs’ claim against mifepristone contains three flaws.
1) None of the plaintiffs have “a remotely plausible claim to standing, meaning the ability to sue in federal court.” The only way they could get standing would be to claim they were personally harmed by the FDA’s approval of the drug twenty-three years ago. The writers detail why the plaintiffs can’t legally gain standing.
2) The plaintiffs claim the FDA approved this drug too quickly and ignored adverse reactions. Yet the record of these more than two decades of use tells a dramatically different story, and a forthcoming scientific paper calls its “impeccable safety profile…many times safer than common drugs like penicillin or Viagra.” (I haven’t yet read this 68-page paper, which is in draft form; I’m relying on the Slate writers for accuracy.)
3) The issue of “authority and expertise”: “Never before has a federal judge imposed a ban on a particular drug by wholly revoking FDA approval. That is what the plaintiffs demand, yet it is an unprecedented step that would radically disrupt the entire existing health care system.”
Despite these seemingly fatal flaws, Lithwick and Stern say this litigation, “as absurd and frivolous as it is, stands a significant chance of succeeding.” Appeals to Kacsmaryk’s decision would go to the ultra-conservative 5th US Circuit Court of Appeals, which thought the Texas abortion ban-with-vigilante-rewards that preceded the overturning of Roe (the infamous S.B.8) was just fine, and recently approved the right of alleged domestic abusers to hold onto their guns.
And then on to the Supreme Court.
“Why would [the Supreme Court] bother to balk at another lawless attempt to end abortion?,” the Slate authors ask rhetorically. “It has all but invited this type of risky, meritless intervention by blessing the last one…
“The crisis here is not just that a federal judge could imminently ban an abortion drug that’s been used safely for 23 years. It’s that the chaos wrought by Dobbs means anything is possible, and no one—not even in the deepest blue states—can go to bed with any certainty that they will wake up with their rights intact.”
To me, them’s fighting words–a call to action.
Most Americans support a woman’s right to choose an abortion. Washington Post columnist Jennifer Rubin noted recently, that “Access to Abortion Is a Unifying Issue.” She cited findings from a new Public Religion Research Institute (PRRI) report, that “majority support for abortion access cuts across gender, racial, ethnic, educational attainment and age lines.”
PRRI found that in forty-three states and Washington, DC, majorities of residents say abortion should be legal in most or all cases. In only seven states did less than half the residents say that, and in three of them—Idaho, Tennessee, and Mississippi—the 49% affirmative comes close to a majority.
“So it should come as no surprise that proposals to enact a national ban are wildly unpopular,” Rubin writes.
“The report finds: ‘A majority of Americans (53%) say Congress should pass a national law preserving a right to abortion, compared with 12% who say Congress should pass a national law banning abortion. About one-third (32%) say abortion law should be left to the states.’”
If, as expected, the guy in Amarillo’s decision soon wends its way to the radical Supreme Court majority, who have been quite selective in what they decide, they may forget this stuff about the states and say, “Gee, our colleague down there in Texas is right about this. Never mind what we said about the states’ rights.”
And what will we do if this one-two punch is delivered by a single lawless judge imposing his will over an FDA time-tested scientific decision–and then that lawless first punch is “validated” by a Supreme Court majority that has disregarded some of the very basics of jurisprudence?
I don’t see wringing our hands and lamenting our fate as reasonable options. We are faced with an enormous challenge from people who want to turn back all the gains that women, people of color, LGBTQ people, and others have made. We must gain enough control of our government at all levels to enable us to press for court reform—also at all levels.
Do you concur?
UPDATE: I am appending a link to another Slate article I just read that became available yesterday.:
“Actually, One Texas Judge Is Not the Final Decision-Maker on Medication Abortion”--apparently intended as a response to the Lithwick/Stern piece from which I quoted. Its authors are the three individuals who wrote the article linked to by Lithwick and Stern (and me), which is available in draft form and will appear in the Stanford Law Review in 2024. Here’s their conclusion:
“Judge Kacsmaryk is not all-powerful. There’s a huge amount of authority that the FDA will retain, and we should look to the agency to respond to the judge’s ruling in a way that does not interrupt mifepristone distribution.
“And we should also be careful and measured when we talk about this case. It is true that the case is outlandish, and worthy of our attention. But we can anticipate an anti-abortion ruling and prepare for the possible changes in medical care while simultaneously explaining that strong legal arguments grounded in court procedure and FDA law limit the court’s authority. Most importantly, we need to be clear that, no matter what the judge rules, there are scenarios where mifepristone distribution can very likely continue, the same as before, and people who support abortion rights should work to bring those to fruition.”
We must hope they’re right. Unfortunately, the reason there’s so much turmoil about this case on the part of serious court watchers (not just bloggers like me) is that they’ve witnessed so many important guardrails and precedents being disregarded by both lower courts and the Supreme Court majority.
Annie
annieasksyou... 
I have no idea how a single local judge could issue a ruling binding on the entire country — assuming that’s even true. Perhaps other readers who have real legal expertise can explain it.
What I do know is that if such a ruling somehow bans abortion pills all over the country, and especially if it’s upheld at the Supreme Court, the main effect will be massive further erosion of respect for the law more broadly. The national consensus on this issue is moving in the other direction. There has been a strong surge in support for abortion rights since the Dodd ruling. It’s impossible to enforce laws upon populations which overwhelmingly reject them as illegitimate (for example, 60% of counties across the US are “sanctuary counties” which refuse to enforce federal and state gun restrictions, and in practice there’s nothing the feds or state governments can do about it, because most of the people in those jurisdictions reject those restrictions as illegitimate).
If a right which has been recognized as Constitutional for two generations, and is supported by a strong majority nationwide, is suddenly removed not even by legislation but by the arbitrary act of a single radical judge, a large majority of Americans will rightly view it as a serious violation of democracy. Work-arounds will be found. Blue states and perhaps even the federal government may simply refuse to enforce the ruling against suppliers who continue to provide abortion pills. Beyond that, there are already suppliers outside the US who will mail them into this country. Several months ago I read that abortion-rights activists in Mexico were preparing to take such measures to help women in the US seeking abortions. Courts have no enforcement mechanism; they rely entirely on the deference of legislatures and law enforcement. That deference is already in tatters after decades of judicial activism, culminating on the Dodd ruling. A flagrantly baseless ruling by Kacsmaryk in this case could be the final blow to it.
I’m not so sure, by the way, that the Supreme Court would uphold such a ruling. Roberts, at least, is well aware of how badly Dodd damaged the Court’s standing, and might want to avoid the even greater damage that upholding Kacsmaryk in this case would cause. Also (see link above), the growth in support for abortion rights is especially marked in battleground states that will be crucial in the 2024 election and going forward. Dodd trashed the “red wave” last year; a case like this could do the Republicans even more damage next year. The hard-core theocrats on the Supreme Court might not care, but Roberts isn’t really a theocrat, and Gorsuch has shown himself amenable to reason in some cases.
We must gain enough control of our government at all levels to enable us to press for court reform—also at all levels
Best of luck with that one. At a minimum, it would require recovering the House in 2024 (very likely), holding the Senate (essentially impossible given the map, unless Kacsmaryk’s folly unleashes a truly gargantuan blue wave), and electing a president who supports enlarging the Supreme Court or some equally radical reform (impossible if Biden runs again, since he does not support such measures). Pursuing court reform via the political system would mean trying to get a Democratic trifecta in 2028, with a more radical president — and that’s the earliest anything could get done. The focus for now needs to be on the kind of extra-legal work-arounds I mentioned above. The rights of over a hundred million women cannot be held hostage for six years to legal technicalities created by ideologists who themselves show no respect for the Constitution or for established practice when it comes to enforcing their taboos.
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Infidel, I am concerned that one of the many dreadful ramifications of a prospective SCOTUS ruling upholding Kacsmaryk will be erosion of respect not just for the Court–which has plummeted recently to all-time lows–but for the law in general. As for potential workarounds if mifepristone is outlawed, some are discussed in the forthcoming paper Jennifer Rubin cited, to which I linked. It will appear in the Stanford Law Review in 2024. There will also be specific steps that the FDA and the President can pursue independently. Of course, I hope your conjectures concerning Roberts and Gorsuch–obviously, it must be both–are justified. But there will be other cases, to be sure.
I realize that my talk about court reform seems wildly unrealistic at this point. I see it as a slow process, but I believe that abortion may be the one issue that can move it forward. (I don’t want to get sidetracked by gun violence now, but the parallels as I’ve read about them are on the side of those who are repelled that gun violence is now the number one cause of children’s deaths in the US. The law defiers don’t necessarily represent the people they’re supposed to protect.)
The report you linked to is the same one I cited from Jennifer Rubin’s article. As the reality of our world since Dobbs has reached more and more people, support for abortion rights has both increased and intensified–throughout the country. Bolstered by results from the 2022 midterms, activists in states where abortion is currently banned or severely restricted are working to get initiatives on the 2024 ballot. They include, in an alphabetical list Included in an article from http://www.pewtrusts.org: Arizona, Arkansas, Florida, Missouri, Montana, Nebraska, North Dakota, Ohio, Oklahoma, and South Dakota. That’s why state legislatures in red states are not only passing voter suppression legislation, but are also trying to limit citizen initiatives. If some of these citizen efforts are successful, they could have seismic effects.
I think the focus must be multipronged–and women and their allies seem ready for it.
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Kacsmaryk’s leanings are sad but not shocking in a country where Donald Trump became president—and could become president again. To rescue our democracy we need to do away with the electoral college, address voter suppression and economic inequality, uphold minority rights, pass strict gun control measures, allow women to whether or not to terminate a pregnancy, and, as Annie notes, pursue court reform.
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Your rescue list sounds good to me, Gail!
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I am afraid we are condemned to live with a political system designed for a small minority of landowning men in the 18th century. The Electoral College will never change. Why not? Because it gives the rural states massive power. The same is true of the Senate. Senators representing just 9% of the population can prevent any law from being passed.
On the plus side, the law of supply and demand is the highest law of the land, practically speaking. Prohibition never works. It will not work with the abortion pill. And will not work with even better methods that undoubtedly will be created by science.
As a previous post pointed out, the long term consequence is a growing disrespect and mistrust of the law. The law and justice are two different things. It seems to me that Draconian laws will be ignored and a few people will be prosecuted and pay the price. Most probably people of color.
The structure of the US government was not designed to be democratic. It is not an oversight but intentional. The structure of our government prevents meaningful long term solutions. The Founding Fathers would be appalled that minorities, women and people of color have any rights at all. They would wonder where we went astray.
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All true, Joseph, most especially that people of color repeatedly suffer most. Yet there have been all those amendments designed to move us toward a more perfect union. We have setbacks, but I derive hope from them. Black Americans are among the most patriotic people in the US. Their determination to keep on keeping on inspires me.
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I definitely agree with all of what you say, Annie! In voting for Presidents I’ve always thought a most convincing argument about who to choose would be the sort of Supreme Court justices and other judges they might choose, and the evidence sure supports that.
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Thanks, George! We need more voters to move judges/Justices to the forefront of their decision-making—and we need more voters!
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No need to get excited. Like any rape this is all about power. If it has arrived at the “last” man it is a good thing. Past this Cerberus is the future. The tightening grip on their guns and the misuse of law are the signs of their demise. The paternity is dying as war has lost it’s profit. What the American matriarchy will look like is yet to be decided, Marge still lurks. Our reign is coming to an end, maybe just a little sympathy for the devil?
Joe’s right by the way. Prohibition never works.
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But a whole lot of people will be damaged in the interim, Richard.
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Yes and tragic beyond broken moral compass I comprehend but this was going to come inevitably. Science, public health and human rights have moved well past this BS. We are experiencing what leaving a wound undressed for 50 yrs causes. Either we are a democracy or not, this issue needs to be put to rest. A national referendum administrated by the people July 4 2023.
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Thank you, Fandango!
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I do indeed concur!!! This is so bullshit ridiculous that if I didn’t know better I’d think it came straight out of a dystopian novel! We worry about the next president becoming a dictator … heck, before then, the courts will become the de facto dictator of the U.S. It seems only fair, then, to pass a law making a non-reversible vasectomy mandatory at age 14 for all males, so we won’t have to worry about pregnancy, thus no need for abortion. Extreme, you say? Sure, but no more so than the Courts taking away women’s rights at a dizzying rate. The planet is overpopulated anyway … this would help reduce the population soon enough! Grrrrrrrrrrrrrrrrrrrrr …
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Reblogged this on Filosofa's Word and commented:
We worry about a Ron DeSantis or a Donald Trump being elected and turning this nation into a dictatorship, but perhaps we should be more immediately concerned by the rate at which the courts are taking over our lives! Our friend Annie over at annieasksyou has the lowdown …
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Court Reform is a must if stupid or malicious decisioins are to be prevented.At he very least they must be made to work to a code of practice.Those that refuse should be dismissed summarily and not be allowed to practice law anymore.
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That’s what is so different now, David. In the past, if we had heard of such a wacky situation, we would have had confidence that the Supreme Court would adhere to precedents–even when they didn’t like the precedents. We’re in different territory now. Reform will take quite a while, but I think it’s essential that we’re talking about it now. Thanks for your visit and comment.
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6 of the current 9 justices of the Supreme Court were appointed by Republican presidents. Even though the Republican candidate for president has won the popular vote only once since 1988. Trump, who was POTUS for 4 years, was given 3 appointments. Obama, who served 8 years had only 2. That is why they are so out of touch and care not what regular folks want. This is the McConnell court and we are stuck with it for a long time. End lifetime appointments. 16 years is plenty.
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I’m open to any suggestions, Joseph. I think the case can be made that we need more justices based on workload alone: 13 districts should warrant 13 justices.
And the Democrats must never again allow the Republicans to get away with stealing an appointment, as Mitch did twice.
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Some suggestions. Mandatory retirement at age 70. Every POTUS is guaranteed at least one appointment in his/her first year of each term, (the longest serving justice must resign). Eliminate public hearings for nominees. Tax returns of justices and their spouses are made public each year. All sources of income, including speaking fees are made public. An independent ethics board oversees any potential conflicts of interest. Increase the court to 13 members.
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Apart from the age 70 mandatory retirement, I’d vote for them all, Joseph. Thanks!
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I say the age should be 70 because the technology and science are advancing so rapidly that we need people closer to modern times.
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I don’t think changes to the court will solve the problem. Our government is based on the people electing responsible representatives. Failing that, we have checks and balances. The Constitution fails to protect us, if two of the three branches are corrupt. This can happen, as we have seen, when a political wave elects a corrupt President and a corrupt majority in Congress, which then corrupts the Supreme Court. Against the odds, we must elect better representatives.
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I agree that’s the way things are supposed to work, William. But if we have the power in two legs of the stool to address huge wrongdoings in the third, I think we need to do so. I know that’s a big if…
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I don’t think changes to the court will solve the problem. Our government is based on the people electing responsible representatives. Failing that, we have checks and balances. The Constitution fails to protect us, if two of the three branches are corrupt. This can happen, as we have seen, when a political wave elects a corrupt President and a corrupt majority in Congress, which then corrupts the Supreme Court. Against the odds, we must elect better representatives.
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whungerford, I must respectfully disagree. You are talking abut the theory of US government. I taught Participation-in-Government (and many other Social Studies and history courses) for probably 20 years or so. Since the 1980s the radical right has effectively undermined democracy. The people do not choose their leaders. the “leaders” gerrymander their districts to remain in power. Both parties do this, but the GOP has raised it to a science.
In theory we have “checks and balances”, but only if Congress decides to limit the other 2 branches. Since Republicans in Congress no longer truly represent citizens they have no desire to limit authoritarianism. Look at the dishonesty of Mitch McConnell in refusing to “advise and consent” on Obama’s Supreme Court candidate. Then , in the most cynical manner, shoved through Trump’s 3rd SCOTUS member at the last minute. As a result, we now have a court majority which sees itself as a force for a return to the past, not an honest arbiter of the Constitution.
The Constitution is only as good as the people who are empowered to follow it. It depends on a commitment to democracy and justice. The GOP no longer participates as honest members of our government.
We tend to believe that the “voters” are the answer. But when voters are not allowed to vote or vote in gerrymandered districts they really have no voice at all. The radical right wing has effectively “gamed the system” and I have no practical idea as to how we can change that.
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We must keep doing the hard work of grass roots activism, which prevented the red wave in 2020. Fortunately, there are lots of folks who don’t rest and are at this effort right now, when most people aren’t thinking about the 2024 election.
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I think you mean 2022. Despite my cynicism I have a lot of hope in the younger generation. We may be reaching a point where liberals will start doing what conservatives have been doing for the last 50 years. That is, simply ignoring the laws we don’t like. Also, science and technology makes very unlikely that any government can end access to birth control, abortion or books. So, even though the political system is rigged, it may be more and more irrelevant as time goes on.
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A valid point, Joseph—but one that could be addressed by young SCOTUS clerks and staff.
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Very well written Annie! Sorry, I’m so far behind.
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No need for apologies, Joni! Just glad to hear from you. And thanks!
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Thank you again, Jill! As I’ve noted, I find Joyce Vance an especially well-informed, thoughtful, and compassionate legal commentator. There’s an intensity to her language here that’s a bit stronger than usual—suggesting to me that not only the abortion issue itself, but also the incredibly weak bases for the rulings, are infuriating her on many levels. And I agree. As she says at the end of each newsletter she writes: “We’re all in this together.”
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