life after roe

Rogue Texas Judge Could Ban Abortion Pills Nationally

Anti-abortion activists protest abortion pills in front of a CVS in Washington, DC. Photo: Drew Angerer/Getty Images

In a predictable if outrageous bit of fallout from last year’s Supreme Court Dobbs decision eliminating any federal constitutional right to an abortion, a Trump-appointed federal judge in Texas known as a right-wing judicial activist may be on the brink of a ruling that could ban abortion pills nationally.

No one knows exactly when the Trump-appointed, Amarillo-based district-court judge Matthew Kacsmaryk will act on a petition from anti-abortion groups to overturn the Federal Drug Administration’s 23-year-old approval of mifepristone, the first in a two-pill procedure for safely terminating pregnancies. It could be as soon as the end of this week. But the timing isn’t accidental: The effort to crack down on abortion pills comes right after the FDA approved the distribution of mifepristone by pharmacies without a doctor’s visit, and after a major shift toward medication abortions (which now comprise over half of all abortions), which was stimulated by bans on surgical abortions in conservative states. Kacsmaryk’s ruling could also touch on distribution of mifepristone by mail — another way of enforcing red-state abortion bans.

The substantive argument for the anti-abortion plaintiffs in the case before Kacsmaryk (and even their standing to bring the suit) is dubious in the extreme; every bit of evidence suggests that mifepristone is as safe as the FDA concluded it was in 2000. But this is an extreme example of forum-shopping; the plaintiffs were looking for a judge sure to go rogue on their behalf. And they may have found their man in Kacsmaryk. Here’s how Vox’s Ian Millhiser recently described him:

Kacsmaryk is one of many Trump appointees to the federal bench who appears to have been chosen largely due to his unusually conservative political views. A former lawyer at a law firm affiliated with the religious right, he’s claimed that being transgender is a “mental disorder,” and that gay people are “disordered.” As Sen. Chuck Schumer (D-NY) said during his confirmation fight, “Mr. Kacsmaryk has demonstrated a hostility to the LGBTQ bordering on paranoia.”

And Kacsmaryk is just as fixated on what straight people are doing in their bedrooms. In a 2015 article, Kacsmaryk denounced a so-called “Sexual Revolution” that began in the 1960s and 1970s, and which “sought public affirmation of the lie that the human person is an autonomous blob of Silly Putty unconstrained by nature or biology, and that marriage, sexuality, gender identity, and even the unborn child must yield to the erotic desires of liberated adults.”

What makes Kacsmaryk’s likely ruling so dangerous is that it’s unclear whether the higher courts that usually rein in rogue district judges will act quickly or at all in this case. Until Dobbs, the Supreme Court precedent set by Roe and Casey would have reigned in black-robed culture warriors like Kacsmaryk. The federal right to abortion also would have compelled the conservative Fifth Circuit Court of Appeals to slap down any bizarre rulings from Amarillo, even if its judges privately opposed abortion. It’s now unclear both whether the Fifth Circuit would entertain appeals based on anything other than the most egregious errors of fact and law by Kacsmaryk and, ultimately, whether the same Supreme Court super-majority that struck down Roe v. Wade will find an excuse to avoid interfering with a judicial counterrevolution from Texas. It’s worth remembering that before it handed down Dobbs, the Supreme Court approved the Lone Star State’s outrageous statute rewarding lawsuits against abortion clinics.

Beyond the immediate consequences of a possible Texas ruling, the situation makes a complete mockery of the political case conservatives made for overturning Roe for decades, as Slate’s Dahlia Lithwick and Mark Joseph Sterm observe:

When the Supreme Court overturned Roe v. Wade in June, it promised to “return the issue of abortion to the people’s elected representatives.” In virtually every instance in which it’s been returned to the people, which has mostly happened by ballot initiative and referendum, the people have acted to protect reproductive rights. Perhaps that explains why less than a year after the fall of Roe, conservative activists are trying to put the issue of abortion access into the hands of a single man for whom no one ever voted.

This development should strengthen the case for preempting all this state-based and judicial backsliding by codifying Roe at the federal level.

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Rogue Texas Judge Could Ban Abortion Pills Nationally