COURTROOM BATTLES ARE NOT ENOUGH
The dangerous opinion of a Texas-based federal judge
We just got back from a deeply meaningful delegation to Israel, a sister democracy whose residents pour into the streets every night to protest an attempted political takeover of an independent judiciary. We came home to our own judicial crisis. But here, the political takeover has been implanted in the judiciary itself.
In Israel this spring, hundreds of thousands of demonstrators have been protesting the coalition government’s plan to neuter judicial review and seize completely control over judicial appointments. We stood with the demonstrators because we share their belief in the importance of an independent judiciary as a check on raw political power and a firewall to protect minority rights.
As their ubiquitous symbol, the protesters have adopted the Israeli flag. They understand that patriotism demands resistance to attacks on judicial independence and that liberty demands equal justice under law.
Here in the United States, an emergent crisis threatens our own constitutional order. The question is whether we will have the fortitude and patriotism to confront it.
The latest and one of the most troubling manifestations of that crisis: On April 7, a Texas-based federal judge, Matthew Kacsmaryk, handed down one of the most dangerous opinions that either of us has ever read. It is shamelessly wrong in every way an opinion can be wrong — on procedure, substance, science.
In Alliance for Hippocratic Medicine v. FDA, anti-abortion zealots asked Kacsmaryk to order the Food and Drug Administration to withdraw its approval of mifepristone, a medication used for abortions and miscarriage management.
The FDA approved mifepristone 23 years ago, and it has been used 5.6 million times since then with a vanishingly small rate of complications. It has proven safer than Tylenol and Viagra. And today, most abortions in the country use mifepristone together with another medication, misoprostol.
But Kacsmaryk gave the zealots what they wanted, ordering the FDA to suspend its approval of mifepristone within seven days. Never mind that suits like this one need to be brought within six years of approval — not a full generation later. Never mind that these plaintiffs should not have made it through the courthouse doors because they cannot show that the decision injured them. They are doctors who oppose choice, not patients who have actually taken mifepristone.
Principled conservative judges are supposed to care about doctrines like these — statutes of limitations and standing. And the conservative Supreme Court majority promised that the end of Roe just meant returning abortion to the states. But Kacsmaryk’s decision, if it takes effect — and it still has not, since the U.S. Supreme Court put it on hold until at least Wednesday, April 19 —would prevent women anywhere in the country, even in states like Connecticut where abortion remains legal, from using mifepristone
Kacsmaryk just brushed states’ rights and other ostensibly conservative legal doctrines aside, because he was eager to get to the utterly unscientific and profoundly troubling claim that mifepristone “starves the unborn human until death.” This is ideology
untroubled by legal analysis.
The rest of the decision goes the same way. It valorizes junk science; embraces the dangerous lie that medication abortion psychologically scars women more than forced pregnancy would; and even revives 1873’s Comstock Act, a dead letter since the 1930s, in service of forcing one cramped vision of morality on everyone everywhere in the country.
The opinion is dangerous, but it is not the law in Connecticut, where abortion remains legal and mifepristone remains available. The Attorney General’s Office is fighting back. We have already filed a friend-of-the-court brief supporting the FDA’s appeal, which on Friday was at the U.S. Supreme Court. And we are leading with way, with 16 other states and Washington DC, in a lawsuit that has secured a court order compelling FDA to stay the course and continue to make mifepristone available in Connecticut.
Courtroom battles are important — but they are not enough.
Our federal judiciary is in crisis. As in Israel, we need mass public engagement to protect our democracy. We need to demand a balanced judiciary, responsive to our nation’s core ideals. That means, among other things, new rules that prevent plaintiffs like these from shopping around for the right reactionary judge, and that bar a single judge from inflicting a radical, misogynistic ideology on the entire country. It also means strict ethics and disclosure rules to keep moneyed interests from taking judges captive.
We are not naïve. We know that, too often, law is just the secret language of power. Too often, the U.S. judiciary has fallen short of our national ideals. Decisions like Dredd Scott and Korematsu — and Dobbs, too — shame our judiciary and our country.
But we are not yet cynical, either. There is no alternative but to link arms with peaceful protesters in Israel and across the world to recall the law, the judiciary and the country to its fundamental promise.
We are committed to fighting in court — everywhere we can — to protect women’s rights and reproductive freedom. But this is not just a courtroom battle. It is a fight about the kind of country we want to live in, with a judiciary committed to equal justice under law.