Judges are political actors. They want to be treated like apolitical legal scholars, merely divining legal principles from above the political fray, but most often their decisions cannot be understood absent the context of the political and cultural battles their rulings are a part of.
The latest proof of this is the decision from the US Court of Appeals for the Fifth Circuit partially overturning but largely leaving in place US District Judge Matthew Kacsmaryk’s nationwide abortion pill ban.
Early Thursday morning, the court reversed Kacsmaryk’s ruling that the Food and Drug Administration’s approval of mifepristone in 2000 was unconstitutional, but it didn’t touch the part of the ruling striking down the FDA’s 2016 update to the drug’s usage. Those updates determined that the drug was safe and effective up to 10 weeks into pregnancy, slightly expanding the agency’s original determination that it could be used up to only seven weeks of pregnancy.
In coming to this split decision, the court reasoned that the plaintiffs’ challenge to the FDA’s process in 2000 fell outside the six-year statute of limitations to bring such a case. By the very same logic, a challenge to the 2016 process should also fall outside the statute of limitations, but the Fifth Circuit did not reach this conclusion. Instead, it waved away that inconvenient fact, arguing that the clock didn’t start ticking on the statute of limitations in 2016, when the FDA made the rule, but in 2021, when the FDA responded to people who didn’t like the rule. Further, the court made the unsupported and legally irrelevant observation that the 2016 updates were not “critical to the public” and thus the court could revoke them. It’s the kind of argument that could be made only by someone who thinks pregnant people learn that they’re pregnant at the moment of conception because a stork visits them in the middle of the night and tells them they’re knocked up. It’s not an observation that has any basis in human reproductive biology, legal standards, or the lived experience of pregnant people.
By upholding the part of Kacsmaryk’s opinion reversing the 2016 approval process, the Fifth Circuit has stealthily imposed a nationwide seven-week ban on the abortion pill. The court also upheld Kacsmaryk’s decision to reverse the Biden administration rule change allowing mifepristone to be distributed by mail. The Biden administration expanded access to mifepristone in January, and now that access has been taken away again.
More critically, the Fifth Circuit accepted all of the insane legal arguments Kacsmaryk adopted to get the case to this point in the first place. It accepted the “standing” argument that doctors who did not themselves use mifepristone have a right to sue the FDA on behalf of women allegedly too “ashamed” or “traumatized” to file a lawsuit. It accepted the fake science deployed to allege that the FDA did not fully consider the “psychological” effects of abortion on people who choose to have abortions. And it accepted the fundamentalist Christian contention that the abortion pill involves the termination of a human life (which is a religious belief not shared by millions of Americans who are supposed to be living under a secular government), not that it allows a pregnant person to control their reproductive system.
Popular
"swipe left below to view more authors"Swipe →
None of this makes any sense—not, that is, until you think of the headlines. If the Fifth Circuit had allowed Kacsmaryk’s ruling to stand in full, the headlines would have read something like: “Rando Texas Judge Bans Abortion Pill—and Fifth Circuit Agrees.” But with this Fifth Circuit ruling, the headlines have to say “Court Partially Overturns Ban of Abortion Pill,” or whatever. That the ruling is wrong, illogical, paternalistic, and sexist, kind of gets lost in the larger conversation of “Can I get mifepristone tomorrow, yes or no?” Since the answer is, technically, “Yes… for now,” it’s likely that the media will move on and wait for the courts to sort out the “legalese” of whether people who have had medical abortions are too damaged to sue on their own behalf.
In addition to hacking the media, I believe the Fifth Circuit’s ruling is also designed to delay the final Supreme Court reckoning on this issue. The Department of Justice has already filed notice of appeal of the Fifth Circuit’s ruling; had that court simply rubber-stamped Kacsmaryk’s religious dogma masquerading as a legal opinion, I’d have thought it was a lock for the Supreme Court to answer on emergency appeal. Now, I’m not so sure (although Washington State District Judge Thomas Rice tried to force the issue by issuing a ruling protecting the pill in 17 states “regardless of the Fifth Circuit’s opinion.”)
The Supreme Court could do what it often does with Republican culture-war cases: allow the bad ruling to remain in place for years until the case gets to the court through the normal process. In this case, that would involve a few years. (This ruling was about the emergency appeal of Kacsmaryk’s ruling; next, the Fifth Circuit would have to have a full hearing on the matter, then rule, then that ruling might be appealed to the full Fifth Circuit; then it would rule, and then it would get appealed to the Supreme Court.) The Supreme Court might hope that the restrictions on the abortion pill simply get normalized (or that a Republican administration institutes a nationwide abortion ban) by the time they bother to get to this case.
If that Fifth Circuit gambit doesn’t work, if the Supreme Court rules in the coming days against all of Kacsmaryk’s opinion and the ridiculous arguments he used to get there, we might have Big Pharma to thank for it. As Mark Joseph Stern wrote at Slate, the pharmaceutical industry and the biotech industry realized, almost overnight, that the long-standing forced-birth crusade against abortions presented a clear and present danger to their businesses. It’s almost like the people who profit off of health care realized abortions are health care, or something.
Just this morning, Danco Laboratories, which is among the companies that makes mifepristone, urged the Supreme Court to intervene. Meanwhile, over 400 drug company executives have signed a letter blasting Kacsmaryk’s ruling, and an amicus brief has been filed with the Fifth Circuit on behalf of heavyweight drug companies like Pfizer. Their argument is that having random judges with no scientific expertise second-guessing the FDA approval process puts the entire drug industry at risk. It’s not just about abortion drugs: painkillers, antidepressants, and, of course, vaccines could be subject to the whims of conservative judges and uninformed activists looking to make CVS and Walgreens the next cultural battlegrounds.
It’s sad that rapacious capitalism might be the ally abortion rights advocates need. But given the current makeup of the Supreme Court, it’s good to have some group that the court believes are people (corporations) on the side of people the court usually treats as malfunctioning incubators (pregnant people). The Supreme Court won’t keep the government out of people’s uteruses, but it generally tries to keep the government out of corporate profits.
The fact that the Fifth Circuit tried to mitigate the media impact of Kacsmaryk’s ruling while upholding the core principles of that ruling does show one thing: Conservatives are starting to get that they’re in trouble. Every time they “win” one of these draconian abortion cases, they create a public backlash that gets conservatives kicked out of office. When conservatives lose Big Pharma, they’re essentially losing Joe Manchin and Kyrsten Sinema as well, which is hard for Republicans to do.
I choose to remain hopeful that Bane’s insight to Batman becomes the epitaph of the forced-birth movement: “Victory has defeated you.”
