April 12, 2023 | Reading Time: 5 minutes
They want to outlaw the abortion pill, but they don’t want liberal states to protect their sovereignty. Guess what?
Rightwing politics presumes there won’t be a reaction.
An Editorial Board update
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A federal judge in Amarillo, Texas, apparently thinks he can second-guess doctors, roll back history and make choices for pregnant Americans. I don’t know if I’m surprised. After all, this is Amarillo. It’s the asshole of America.
I’m talking about Judge Matthew Kacsmaryk, of the Northern District of Texas, who issued a ruling late Friday placing a hold on the Food and Drug Administration’s approval of mifepristone, commonly known as the abortion pill. Another federal judge put a hold on his hold, in effect. The US Department of Justice is appealing the first judge’s ruling. All of this is a tee-up for a Supreme Court decision on mifepristone’s future.
I am surprised, a little, by the shortsightedness of this country’s project in rightwing politics. When federal law stood on the side of pregnant Americans – when Roe was the law of the land – authoritarians were very insistent on states being sovereign nations unto themselves. They treated federal law enforcement as something akin to an invasion.
Now that Roe has been felled, all the fuss over the sovereignty of the states is melted into the air. Matter of fact, with antiabortion politics having the advantage, there’s new interest among those enmeshed in rightwing politics in projecting the sovereignty of some states onto the rest. Some states were always more equal than others, I guess.
I’m not surprised by hypocrisy. As I have argued, hypocrisy is the rule of rightwing politics, never the exception. What I’m surprised by is the narrowness of the view. There seems to be a presumption in rightwing politics that liberal states won’t protect their own sovereignty.
But I guess I shouldn’t be surprised by that either. The psychology of rightwing politics is the psychology of bullies everywhere. They won’t act if there’s a risk of consequences. They will act if there’s believed to be none. Actions always have reactions, but rightwing politics won’t know it until its nose is bloodied – and maybe not even then.
The thinking of the Judge Kacsmaryks of the world is this: overriding the FDA’s approval of mifepristone will block access to the drug. If that happened, it would be, in effect, a national ban on abortion without risking the enervating fallout of trying to ban it by federal statute.
This is a frightening possibility made more frightening by a rightwing supermajority on a Supreme Court compromised by its eldest member, Clarence Thomas, being schmoozed for decades by an antiabortionist billionaire whom Thomas calls a “close personal friend.” If he’s being influenced without appearing to be, it’s reasonable to suspect other members of the supermajority are. Altogether, this nation can feel less like the rule of the people and more like the rule of the justices.
Fear of judicial tyranny is understandable but presumes something. It’s the same thing rightwing politics presumes: that there won’t be consequences. Actions have reactions, and in a nation like ours, in which states enact most of the laws we’re subject to, most reactions will take the form of state laws passed to serve and protect residents. In the context of antiabortion politics, such state laws would likely maintain access to mifepristone, the Supreme Court be damned.
Pay close attention to what attorneys general in proabortion states are saying about Judge Kacsmaryk’s reasoning from the asshole of America. Here in Connecticut, Attorney General William Tong said, after reading the ruling, that “you just are left with the feeling and understanding that this is just total bullshit, and [it] just reflects this ongoing, deep-seated, abiding, pervasive, pernicious misogyny in our law.”
“It is the law of the state of Connecticut today, tomorrow and as long as we’re in this fight that mifepristone and medication abortion is, in Connecticut, legal, safe, effective and available. Period. Full stop.”
It’s not hard to imagine, if the Supreme Court were to override two decades of FDA approval, states like Connecticut doing their best to maintain access to mifepristone. It’s not hard to imagine their health departments continuing to approve of its use. It’s not hard to imagine them protecting individuals and businesses from lawsuits and law enforcement in states hostile to abortion. And because these aren’t hard to imagine, it’s not hard to imagine something else – for states like Connecticut to become national clearinghouses for pregnant people.
Judge Kacsmaryk’s ruling is about FDA approval, not interstate commerce. In January, I wrote about the Biden administration carefully and quietly reacting to the fall of Roe. Justice Department attorneys wrote that delivering mifepristone, even into states that have totally banned abortion, is legal, as long as the sender presumes legal use.
“Those who send abortion drugs to states with strict abortion laws,” Alice Miranda Ollstein and Josh Gerstein reported, “won’t ‘typically’ have the degree of knowledge necessary to violate federal law.”
(Update: A federal appeals court in New Orleans ruled last night that mifepristone can still be available but under tighter restrictions. The AP reported that it “put on hold changes made by [the FDA] since 2016 that relaxed the rules for prescribing and dispensing mifepristone. Those included extending the period of pregnancy when the drug can be used from seven weeks to 10, and also allowing it to be dispensed by mail, without any need to visit a doctor’s office.” The ruling said mifepristone could not be sent by mail. The Supreme Court will likely hear the case.)
But even if the Supreme Court ruled at some future date that sending mifepristone into states with strict abortion laws does violate federal law, states have been challenging federal law since the founding, the most recent example being legalizing marijuana for recreational use.
Laws mean nothing unless enforced, and in the case of mifepristone, that won’t happen unless the US government censors interstate commerce or dispatches armies to occupy the capitols of liberal states.
None of this is to say you shouldn’t worry. You should.
What I’m saying is don’t think about the future in terms that are preferable to rightwing politics. Think about the future on your own terms. If you don’t want your state to surrender, you have the power.
John Stoehr is the editor of the Editorial Board. He writes the daily edition. Find him @johnastoehr.