The Mifepristone Ruling Isn’t Just a Threat to Abortion Rights—It’s an Attack on Our Democracy
For a moment, I’d like you to harken back to third-grade social studies class.
You’re gnawing on Lunchables, unencumbered by puberty, and elated when your teacher turns on Schoolhouse Rock!
You listen to cheery songs about how our democracy was created with checks and balances. A basic concept that elementary-school children can understand.
A basic concept that, somehow, our own judiciary fails to understand.
Our democracy should be of the people, by the people, and for the people. But that democracy is now severely off course after years of gerrymandering, the sharp increase in extremist conservative activism within the courts, and the overturning and gutting of our fundamental rights.
The most recent democracy derailment occurred on April 7, 2023, when Judge Matthew Kacsmaryk in Texas issued a decision that could potentially ban access to mifepristone—a drug approved by the Food and Drug Administration (F.D.A.) that is safer than Tylenol and used in over half of all abortions in the United States.
We, the National Women’s Law Center, want to be unequivocally clear here: This ruling is baseless and lawless. A single trial court judge in Texas should not be able to insert his personal ideology to override F.D.A. expertise and the rule of law to take away a critical medicine for the entire nation.
Because make no mistake: Bringing this case in Judge Kacsmaryk’s court was a strategy that anti-abortion extremists made with malice and on purpose.
It is no coincidence that the lead plaintiff in this case—Alliance for Hippocratic Medicine—formed their organization just two months after the Dobbs decision, and is incorporated in Amarillo, Texas: a jurisdiction with only one federal district judge… Matthew Kacsmaryk.
Kacsmaryk’s record—before and since becoming a judge—makes clear that he allows his own harmful views on abortion to dictate the law and he cannot serve as a fair and impartial jurist. So to no one’s surprise but every (not terrible) person’s horror, when it came to this mifepristone ruling, that’s exactly what he did.
After Kacsmaryk’s terrible decision, the government appealed. That appeal goes to the Fifth Circuit Court of Appeals, also a court made up of judges with extreme anti-abortion views, which was also surely part of the plaintiffs’ strategy. Late at night on April 12, 2023, the Fifth Circuit should have overturned Kacsmaryk’s decision, but instead, it largely refused to, and their decision “blocked a series of steps the F.D.A. took in recent years to ease access to the drug—including allowing it to be sent through the mail and prescribed by health care providers who are not doctors.”
This strategy might sound familiar. And that’s because it’s the exact same playbook the anti-abortion movement used to chip away at and overturn Roe.
I.e., Extremist judges know it’s politically impossible to take away this drug totally—but they want to impose enough restrictions to take it away for most.
Our democracy is supposed to have checks and balances where no branch can act with impunity. But this decision is another demonstration that our system is failing. Anti-abortion extremist judges across the country have taken their cue from the hostile majority on the Supreme Court that is willing to set aside the rule of law and precedent to advance their extremist agenda—even when that agenda goes directly against what the majority of the American people believe and want.
For almost a year, people across the United States have made it abundantly clear that they oppose the government taking away our right to abortion care. Indeed, in every state where abortion rights were on the ballot during the midterms, voters chose to affirm them. And on April 4, 2023, Wisconsin voters flipped the majority of their State Supreme Court from largely conservative because they want to see abortion protected.
The will of the people could not be more clear. And yet extremist judges like Kacsmaryk still act to decimate abortion access—and that’s not the only area where our judiciary is undermining what we want. In March 2023, another extremist federal judge in Texas took away no-cost health insurance coverage of key preventive care services, affecting “dozens of potentially lifesaving preventive health care services that the federal government recommends, including drugs that prevent H.I.V. transmission and screenings for adolescent depression.”
These rulings are incredibly dangerous for our health, our bodies, and our futures. And Judge Kacsmaryk’s opinion is particularly unprecedented in so many aspects, but particularly in its attack on our administrative systems of government, where experts in the F.D.A. are trusted to interpret science, determine the safety of drugs, and regulate medication distribution.
We do not yet know exactly how Kacsmaryk’s unprecedented decision will play out, but what we do know is that we are clear-eyed about the threat extremist judges like Kacsmaryk are inflicting not just on abortion rights, but on our democracy. And we are clear-eyed that we must move forward to restore justice and the rule of law back into our judiciary in any way possible.
But to harken back to Schoolhouse Rock!, what we really need is Congress to “check” the power of our judiciary—something… according to our Constitution and any Lunchables-consuming third grader… they’re supposed to be doing anyway.
That’s why we’ve called on the Senate to begin an investigation into reports that call into question the ethical standards to which Supreme Court justices are held. Additionally, we urge swift legislative action to implement strong judicial ethics reforms for the entire federal judiciary.
In other words, let’s make sure no extremist like Kacsmaryk gets control over the bench or our bodies or futures ever again.