Will the Supreme Court Uphold an Abortion-Pill Ban?

Matthew Kacsmaryk, the Trump-appointed black-robed anti-abortion activist. Photo: Senate Judiciary Committee via AP

The only unpredictable thing about Texas District Judge Matthew Kacsmaryk’s sweeping ruling on Friday invalidating the Food and Drug Administration’s 2000 approval of mifepristone, a drug widely used to terminate pregnancies, was the timing and the scope of his judicial radicalism. Anti-abortion groups had chosen to bring the suit to this Trump-appointed judge, himself a veteran litigator for conservative Christian causes, hoping that he would largely adopt their arguments in his ruling. That he did so systematically, often using the anti-abortion movement’s language about “unborn humans” thinly veiled in insincere sympathy for the health and safety of women seeking abortions, has sparked nationwide outrage.

Indeed, as the Biden administration weighs its options for defending the FDA’s authority, some pro-choice advocates, including members of Congress, are counseling simple defiance of Kacsmaryk’s order, as Politico reports:

“I believe the Food and Drug Administration has the authority to ignore this ruling, which is why I’m again calling on President Biden and the FDA to do just that,” Sen. Ron Wyden (D-Ore.) said Friday. “The FDA, doctors, and pharmacies can and must go about their jobs like nothing has changed and keep mifepristone accessible to women across America. If they don’t, the consequences of banning the most common method of abortion in every single state will be devastating.”

Rep. Alexandria Ocasio-Cortez (D-N.Y.) backed Wyden’s call in a CNN interview Friday, arguing that the “deeply partisan and unfounded nature” of the court’s decision undermines its own legitimacy and the White House should “ignore” it.

Complicating the picture much more, the very day of Kacsmaryk’s ruling, U.S. District Court Judge Thomas Rice ordered the FDA to maintain the current status of mifepristone pending a hearing on a lawsuit from Democratic attorneys general challenging some of the existing restrictions on distribution of the drug. So the FDA and the Biden administration are in a legal bind. That could lead the Department of Justice to follow the counsel of Wyden and Ocasio-Cortez and just keep on keeping on (there’s even a legal theory that federal agencies like the FDA have to go through a lengthy process involving expert testimony and public comment before complying with judicial orders that negate their own decisions). But it also strengthens the case for elevating the topic to the U.S. Supreme Court for a preliminary stay on Kacsmaryk’s ruling.

In the normal scheme of things, the administration would ask a three-judge panel of the Fifth Circuit Court of Appeals to put a hold on the ruling until it can be fully appealed; indeed, Kacsmaryk delayed the effective date of his order for seven days to enable an emergency petition by the administration. The Fifth Circuit is notoriously the nation’s most conservative appeals court, though it’s possible a randomly chosen three-judge panel might be more balanced. Because of the conflicting order by Rice, however, the administration could seek an immediate intervention by the Supreme Court, as Vox’s Ian Millhiser explains:

Even if the Supreme Court doesn’t rule on the underlying issue of whether mifepristone should be legal, the two conflicting orders put the FDA in such a legal bind — it cannot comply with both — that it may ask the justices to invoke a rarely used process, known as “certiorari before judgment,” which allows the Supreme Court to hear a case before it is decided by an appeals court.

So either as a first or (after a Fifth Circuit review) second resort, the same U.S. Supreme Court that audaciously struck down the 49-year-old precedent in Roe v. Wade might be in a position to act on Kacsmaryk’s ruling within days. What will it do?

Obviously, no one knows for sure, but there is a rough consensus that Kacsmaryk’s reasoning is so egregiously flawed and partisan that the Supreme Court majority (or even the Fifth Circuit) might be loathe to let his ruling take effect. That’s what Millhiser concludes:

To be clear, Kacsmaryk’s ruling challenges not just the FDA’s 23-year-old determination that mifepristone is a safe and effective medication — without really supplying any fresh evidence that it isn’t — but the entire edifice of pharmaceutical regulation and even the underpinnings of U.S. administrative law. Even some anti-abortion advocates admit it’s an awful decision. The Supreme Court could determine that Kacsmaryk’s reasoning on why the anti-abortion organizations who brought the suit have legal standing to do so is too shaky. That would give the higher court an excuse to knock down the ruling without even addressing the arguments about the merits of the FDA’s decision-making:

If the Supreme Court actually rejects a petition for a stay on this or any other ground, and Kacsmaryk’s ruling is allowed to take effect, it will be with loud dissents from the Court’s liberals. It would be a development that would literally set off protests in the streets from coast to coast; hand Democrats a gold-plated campaign issue (a runaway radical judiciary in the grip of religious extremists) for 2024; and revive talk of court-packing and other controversial steps to rein in scofflaw federal judges. It would presumably be the worst nightmare of Chief Justice John Roberts, assuming he’s still worried about perceptions that the Court has been “politicized.” We’ll know very soon which way the wind is blowing in the conservative precincts of the federal judiciary.