Column: A national abortion ban won’t fly. But a handpicked Trump judge could do something almost as extreme
Trust in the Supreme Court has plummeted since the conservative court packing of the Trump years, polls show. But look deeper: The personnel and goings-on in some lower federal courts shouldn’t inspire confidence either. And the ramifications of judges’ decisions in those scores of courtrooms can be just as sweeping as the Supremes’.
Case in point: The federal courthouse in Amarillo, Texas, where at a hearing Wednesday the sole judge for a sprawling, out-of-the-way district considered whether to ban — nationwide — an abortion pill that is used in more than half of all terminated pregnancies in the country, including miscarriages. U.S. District Judge Matthew Kacsmaryk could decide to issue that preliminary injunction as early as this week, effectively outlawing the pill even in states where abortion is legal, while the lawsuit challenging the drug’s safety plays out.
Whatever your opinion on abortion, you should be aghast at this lawsuit. It’s been more than 20 years and countless dosages since the Food and Drug Administration tested and approved mifepristone as part of a two-drug abortion regimen. Since then, the agency has repeatedly reapproved it and mountains of medical data have attested to its safety.
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Jackie Calmes
Jackie Calmes brings a critical eye to the national political scene. She has decades of experience covering the White House and Congress.
At Kacsmaryk’s hearing, the antiabortion activists who brought this case conceded that for a court to order the government to pull a long-approved drug from the market would be unprecedented.
And yet … the antiabortion groups second guessing the FDA’s scientists have reason to feel optimistic that Kacsmaryk will side with them. After all, they handpicked this judge to hear their suit, just as other conservative activists have done during his four years on the bench, because of his evident sympathy to their causes.
For right-wing “forum shoppers,” Kacsmaryk is one of the go-to guys.
Like so many others plucked for the federal bench by former President Trump, he is white, male, young — just 39 when nominated to the lifetime job, the better to rule for decades — and reliably, radically, conservative. He joined the Federalist Society in law school, worked on Republican campaigns in Texas, including for Sen. Ted Cruz, and came to the federal bench straight from lawyering for a Christian “religious freedom” legal group, First Liberty Institute.
A federal judge heard arguments in a high-stakes case that could threaten access to abortion medication and blunt the authority of U.S. drug regulators.
As his staunchly antiabortion sister recently told the Washington Post about her big brother’s role in the abortion pill case: “I feel like he was made for this. He is exactly where he needs to be.”
Trump sure thought so. Egged on by evangelical supporters, the Federalist Society and the equally right-wing Heritage Foundation, the former president had to nominate Kacsmaryk three times over three years before a Republican-controlled Senate would finally confirm him, by a close vote. Kacsmaryk’s views almost proved too much, even for some Republicans.
His confirmation hearings showcased not only his antiabortion advocacy, but also his views that LGBTQ people have mental disorders and that legalized same-sex marriage would put the nation “on a road to potential tyranny.” He’d written that “the pro-marriage movement” — favoring marriage between a man and a woman — must follow the example of the opponents of Roe vs. Wade: Play a long game and fight to “win the case 40 years from now” to restore “traditional marriage.”
No surprise, then, that Kacsmaryk reportedly keeps a bobblehead of Clarence Thomas on his desk. Justice Thomas, concurring with the Dobbs vs. Jackson Women’s Health Organization decision overturning Roe last June, suggested that the Supreme Court also “reconsider” constitutional protections for same-sex marriage, same-sex intimacy and contraception.
Walgreens caved to political pressure from state lawmakers who are against abortion. That is no reason for Walgreens not to sell abortion pills in those states.
Kacsmaryk has twice ruled against President Biden’s effort to end Trump’s “Remain in Mexico” policy for asylum-seekers. He likewise decided against a federal program that provides contraceptives to teens, saying it violates parents’ rights. And he struck down a Biden policy that healthcare providers can’t discriminate against LGTBQ people despite the Supreme Court’s determination that an antidiscrimination law covered those groups. Kacsmaryk began his adverse opinion by citing Justice Samuel A. Alito Jr.’s dissent from that ruling.
But the abortion pill case has drawn the most controversy. Rightly so: It underscores just how radical a turn the nation has taken against women’s reproductive rights after a half-century of Roe’s constitutional protection.
With the Dobbs decision, the Supreme Court threw abortion law back to the states, “to the people’s elected representatives,” Alito wrote. Concurring, Justice Brett M. Kavanaugh declared that judges would no longer decide “those difficult moral and policy questions.”
Abortion pills: A Trump-appointed conservative judge’s upcoming ruling could have the biggest effect in blue states like California. What to know.
That was what conservatives for decades had claimed was their holy grail: Let the states decide. Indeed, red states have rushed to impose near total bans. According to the pro-abortion rights Guttmacher Institute, which tracks U.S. abortion laws, 24 states have enacted such bans or are likely to do so (some are being challenged in court).
Yet now antiabortion activists, want more — a national ban. Without hope of getting such a law from a Democratic president and a divided Congress, they’ve turned again to the federal courts for the next best thing: a ruling with national sway outlawing medication abortion. So much for Alito’s and Kavanaugh’s predictions.
Reports from the Wednesday hearing indicated that Kacsmaryk, true to form, was seeking a way to support the antiabortion plaintiffs. Should he indeed decide the FDA and the medical profession have for nearly 23 years been wrong about mifepristone, it’s a good bet he’d be upheld in the ultra-conservative 5th Circuit Court of Appeals, whose jurisdiction includes Texas. Then the issue goes to the Supreme Court. We know which way it leans.
And the justices wonder why they’ve got a record-high 58% disapproval rating, why so many Americans have come to see the judiciary as being ideological rather than impartial and no less political than the other two branches of government.
It’s simple: These days the judiciary often is.
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