The women—and men—of Wisconsin who elected pro-choice state Supreme Court Justice Janet Protesiewicz by 11 points last Tuesday were still celebrating their hard work on Friday night when an unelected federal district judge in Amarillo, Tex., took away their right to seek the medication-abortion drug mifepristone. Judge Matthew Kacsmaryk happens to have been chosen by Donald Trump, who was indicted the same day Protesiewicz was elected on charges that he illegally covered up paying hush money to a porn star and a Playboy model he screwed, to keep the news from voters right before the 2016 election.
To recap: Pro-choice forces won an election in Wisconsin, but nonetheless may have lost key abortion rights (Kacsmaryk stayed his decision for a week to give the government time to respond) because Trump tried to steal an election (and likely succeeded). All over the country, small D-democratic voters, who make up a majority of the nation, are having their rights taken away by a minority of ruthless authoritarians.
You don’t need me to break down the legal “gobbledegook,” as my colleague Elie Mystal described Kacsmaryk’s ruling here, that the judge used to find that the FDA wrongly concluded mifepristone was safe 23 years ago. This former “crisis pregnancy” center board member, whose toddler used to wear an “I survived Roe v. Wade” T-shirt, spewed a decision full of junk science and made-up law. He took as a given that a fetus is an “unborn person,” though “fetal personhood” laws have failed even in red states. He referred derisively to doctors who provide abortion as “abortionists,” the language of the often violent anti-abortion right. And he promoted desperate, discredited myths about the “tragedy” of abortion spewed by those same forces, insisting that the crackpot coalition that brought suit calling mifepristone unsafe had standing (it doesn’t) because the abortion “victims” who might have done so instead are still too traumatized by the tragedy to have the sense to bring their sorrows to Kacsmaryk.
Like other smart legal analysts, Mystal sees the case headed to the Supreme Court this week, especially because a federal judge in Washington challenged Kacsmaryk’s ruling. That should reassure nobody. Of course, the court should have trouble with a federal judge’s deciding that the Food and Drug Administration made a mistake approving a prescription drug 23 years ago, as well as with the technical issue of whether the coalition of Christo-medical zealots that brought the case had standing to do so. But as Mystal writes, “It’s difficult to predict what the six conservative justices who have already thrown out Roe v. Wade and the 50 years of settled law that goes with it will do with these cases.” It sure is.
Just before Kacsmaryk’s decision came down, I was reading Michelle Goldberg’s excellent New York Times column, “The Abortion Ban Backlash Is Starting to Freak Out Republicans.” It’s true that, from the 2022 midterms through the Wisconsin vote, the GOP has lost crucial elections largely because of its abortion extremism, and Republican forces from the Wall Street Journal editorial page to anti-choice Ann Coulter are warning party leaders to moderate. The week before, Rebecca Traister’s excellent “Abortion Wins Elections” New York magazine cover story had this indelible quote from pollster Celinda Lake: “I don’t think Democrats have fully processed that this country is now 10 to 15 percent more pro-choice than it was before Dobbs in state after state and national data.”
I believe Lake. And yet, as both Goldberg and Traister acknowledged, the GOP is continuing to push ever-more-extreme anti-abortion legislation anyway. On the heels of Protasiewicz’s victory, Idaho criminalized helping a minor secure abortion care, making it a felony punishable by up to five years in prison. Good news: On Wednesday, Michigan Governor Gretchen Whitmer signed a bill repealing the state’s 1931 abortion ban. Bad news: On Thursday, Tennessee’s GOP supermajority expelled two young Black legislators from the state assembly for their role in a noisy capitol protest of the state’s inaction in the face of the gun murders of six people—three 9-year-olds and three staffers—at Nashville’s Christian Covenant school.
The Tennessee outrage doesn’t fit neatly into this story about abortion, but it fits. This is a story about ever-more-dangerous right-wing forces defying democracy to accomplish their goals. I should note: Protasiewicz’s victory was also attributable to her promise to preside over fair legislative maps in Wisconsin, for the first time since a GOP majority under Governor Scott Walker took office in 2011. It gerrymandered the state so severely that in 2018 Democrats got 200,000 more votes for the assembly than Republicans but the GOP held almost two-thirds of the seats.
In the wake of Trump’s election, new candidates, disproportionately women, surged into elected office. Democrats put new attention into reclaiming statehouses and made progress in 2018; they lost focus during the presidential election year of 2020 (and also faced a deadly pandemic) and lost seats, but they prevailed in 2022, flipping legislative bodies in Michigan, Minnesota, and Pennsylvania and winning crucial victories elsewhere. Democracy is prevailing in those states. Fortunately, local city and county officials in Nashville and Memphis are expected to restore Justin Jones and Justin Pearson to their legislative seats. Democracy might still prevail in Tennessee.
But not really. In Tennessee, 80 percent of voters support abortion rights under some conditions, and large majorities of Tennessee parents favor stricter gun laws (as shown by a poll released just before the Covenant murders). Yet the Republicans who run the state ignore them. (They recently added a few exceptions to the state’s total abortion ban, but advocates say intimidated state doctors are unlikely to observe those.) Red-state voters support a lot of the same policies blue-state voters do, and yet they elect Republicans for reasons of identity, obstinacy, and, yes, racism.
So at best we’re going to have an abortion archipelago: Abortion care will be legal in blue states and mostly illegal in red ones. Unless the Supreme Court—having said in its Dobbs decision that the issue will return to the states where it rightly belongs—sides with Kacsmaryk and decides to outlaw a drug that is safer than Tylenol, Viagra, and, of course, childbirth. (Most women opt for medication abortions, if they need one.) Such a ruling will leave them with less-safe options, even in blue states.
This is not how democracy is supposed to work, but this is how ours is working now. Still, just like Dobbs provoked a voter backlash that has doomed Republicans in race after race, so would a Supreme Court decision to outlaw mifepristone nationwide. (We can expect the same coalition of lying Republicans and lazy reporters to tell us we’re wrong about that, as they did in 2022, but this time we’ll ignore them.) The only answer is to keep working, keep running for office, keep voting.
It sucks: “Hey Wisconsin voters, you did your job to protect abortion rights—now we need even more from you!” But I don’t see an alternative. After years of planning, and millions, perhaps billions, in dark money and other sleazy funding, Republicans have taken over state legislatures and many courts, including the highest court. Democracy won’t be safe until we take it all back.