By Elie Mystal, The Nation
Two weeks after Texas District Judge Matthew Kacsmaryk issued a nationwide ban on the abortion pill mifepristone—revoking the Food and Drug Administration’s approval of the drug from 2000—the Supreme Court stayed the order, pending a full appeal on the merits of the case. The decision delays not only Kacsmaryk’s ruling but also the ruling by the US Court of Appeals for the Fifth Circuit that reinstated the 2000 FDA approval of the drug but banned a 2016 FDA update that extended usage of mifepristone from seven to 10 weeks. What that means is that abortion pills are legal up to 10 weeks again—for now.
This is a victory for reproductive rights, insofar as keeping what rights people still have in the wake of last year’s decision in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade counts as a “victory.” The case now goes back to the Fifth Circuit, which will hold a hearing and, almost certainly, issue another shambolic ruling against the abortion pill. That ruling will eventually be appealed to the Supreme Court, so we don’t know when access to medical abortion will be put at risk again.
Even so, it’s not a total victory. The high court should have dismissed Kacsmaryk’s decision outright, rather than staying it pending further review. That’s because Kacsmaryk’s decision was not only wrong on the merits but also a complete disaster in technical and procedural terms. The plaintiffs who brought the suit to prohibit the abortion pill—a group of hyper-Christian “doctors”—did not show that they suffered any harm from the FDA approval process, and thus shouldn’t have been allowed to sue in the first place. Moreover, the lawsuit should have been time-barred—there’s a six-year statute of limitations on challenging FDA decisions—and Kacsmaryk simply ignored it. These procedural deficiencies meant that the case could have been dismissed, without dragging it out until whatever date the court picks for hearing the full case.
Still, this outcome was always the most likely one. The Supreme Court does not like to dismiss cases without a full hearing, and while I thought this one was so idiotic that it could and should have overcome this general preference, I’m not surprised that the court’s conservative supermajority wanted to give the forced-birth advocates the benefit of a full hearing.
I’m also not surprised about how the justices’ votes ultimately broke. The court granted the stay in the form of an unsigned, one-paragraph order, but two justices who disagreed dissented publicly: Clarence Thomas and Samuel Alito. Alito wrote a full dissent.
Pretty much everything Alito writes is offensive, wrong, and dangerous, and that is the case here too. But, since he lost (for now), his dissent also reeks of bitterness. He’s pissed off, and it’s easy to picture him typing away deep into the night with his face scrunched up from the bile that animates his soul. Alito essentially held the whole country hostage with this ruling for a couple of days, just so he could pound sand in the form of a judicial dissent.
Alito makes no mention of the legal or procedural issues involved in the case. Instead, he objects to the use of the court’s “shadow docket” (which is the colloquial name of the court’s emergency appeals process) to stay the ruling of the lower court. What makes that hypocritical, and pathetic, is that Alito himself is one of the biggest users of the shadow docket, and has regularly used it to promote anti-abortion rulings. It was Alito, after all, who took advantage of the shadow docket in 2021 to overrule a lower-court decision preventing Texas’s “SB-8” law from going into effect; that law legalized bounty hunting against abortion seekers and those who help them.
Apparently, Alito doesn’t like the same tactic being used against forced-birth cretins.
Alito’s dissent further manages to call out three of the four women on the court—Sonia Sotomayor, Elena Kagan, and even Amy Coney Barrett—to accuse them of hypocrisy because of their previous objections to shadow-docket rulings. After citing the judges by name and quoting their rulings, Alito turns to the kind of what-aboutism I can only assume he learned on Elon Musk’s Twitter, writing: “I did not agree with these criticisms at the time, but if they were warranted in the cases in which they were made, they are emphatically true here.”
Right, buddy, shadow docket for me but not for thee.
Alito closes by arguing that there is no “real harm” in allowing the Fifth Circuit ruling to stand. Again, Alito’s understanding of the human reproductive system seems closer to that of a child who thinks storks bring babies than of a doctor who can find the fallopian tubes on a map. The difference between seven and 10 weeks is quite significant when you are carrying an unwanted pregnancy. It’s even more significant when you remember that many people, especially people who were not trying to get pregnant, do not know they are pregnant for the first few weeks after conception.
Bitterness aside, Alito was careful to say that his dissent here does not represent his view on the merits of the case later. I don’t know if I believe him, but I will note that Alito didn’t use his time to defend the arguments on standing made by the plaintiffs. Neither did the other dissenter, Thomas (though I haven’t checked Harlan Crow’s writings about standing). Either of them could have.
Moreover, seven justices thought that a stay was appropriate here, and given that some of those justices are squarely in the forced-birth-for-Jesus camp, it feels like they wouldn’t have granted such relief if they thought that the plaintiffs and Kacsmaryk’s ruling had a good chance of holding up after a full hearing. This could be a delaying tactic; they could be just kicking the can down the road, but I choose to remain hopeful that Kacsmaryk’s legal reasoning is so bonkers that it will not be able to attract five Supreme Court justices. There’s even a chance that it will attract zero.
This is as good as things get on the legal front of the reproductive rights struggle these days: A clearly wrong ruling from a Texas judge has been temporarily blocked over the objection of a mean old man who wanted to fight about something else. And pregnant people who want to terminate unwanted pregnancies can still have access to a 23-year-old drug that is safe, effective, and available all over the world in countries not run by fascist theocrats.
This is a win, mainly because it’s not another devastating loss. For now.