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Backlash to abortion pill ruling carries existential threat for rule of law

Some lawmakers have begun to advocate for usurping the judiciary’s authority in the wake of a controversial ruling on a medication used in abortions. 

WASHINGTON (CN) — The judiciary holds neither the power of the purse nor the sword; the American people must simply trust judges. But what happens when they don’t?  

“I believe that the Biden administration should ignore this ruling,” Democratic Representative Alexandria Ocasio-Cortez said in an interview with CNN, referring to an injunction ordered in Texas last week that would halt sales of a popular abortion drug. 

Ocasio-Cortez is not alone in her calls to ignore the ruling from U.S. District Judge Matthew Kacsmaryk. Republican Representative Nancy Mace also urged the Biden administration to keep mifepristone — one of two drugs used in medication abortions — on the shelves nationwide. 

“I agree with ignoring it at this point,” Mace said in an interview with CNN. 

For lawmakers and court watchers who have been warning of the consequences of damages to the judiciary’s legitimacy, the backlash to Kacsmaryk’s ruling is akin to the straw that broke the camel's back.

“The very fact that we're having this discussion tells you how far down the road we are,” Frederick Lawrence, a distinguished lecturer at Georgetown Law, said in a phone interview. “Think about what this looks like to other countries. This is not America as an exemplar of the rule of law. This is not America as an exemplar of separation of powers and checks and balances. So I think we're in a dangerous position in terms of our legal political life, and the question of what happens if we continue down this road is an uncertain one, but it's an uncertain one that is ripe with real risks, serious risks, dangerous risks.”

Kacsmaryk’s ruling would take mifepristone off the shelves nationwide if it were to go into effect. It is under stay for now, pending appeal to the Fifth Circuit. But even its potential implications for abortion access, and the precedent it would set for future drug approvals, have alarmed abortion proponents, the government and pharmaceutical companies.

A medical advocacy group whose members are against abortion brought the suit before Kacsmaryk, challenging the Federal Drug Administration’s two-decade-old approval of mifepristone. The Alliance for Hippocratic Medicine alleges mifepristone is unsafe — despite FDA evidence that puts the risk of death at just five out of every 1 million people who take the abortion pill. This is compared with other common drugs on the market like penicillin — where the risk of death is four times greater — and the erectile dysfunction drug Viagra — which carries 10 times greater risk of death. 

Against this backdrop, the Ninth Circuit is expected to tackle a ruling out of Washington state that, in contrast to the Texas case, would force the FDA to keep mifepristone on shelves. The Supreme Court is usually the final stop when an issue provokes split opinions among the circuit courts. 

“We have a process for overturning erroneous decisions and it's that appeals process,” Katherine Franke, professor of law and director of the Center for Gender & Sexuality Law at Columbia University, said in a phone call. “There are two levels of very serious appeals in our federal court system: to the circuit court and then the U.S. Supreme Court. Sometimes those appeals go up and down a couple of times on complex legal issues.”

Lawmakers’ encouragement for the Biden administration to ignore Kacsmaryk’s ruling would circumvent the judicial process. 

“If everybody gets to decide what the law is themselves, and they get to be that appeals process, then we actually don't have a system of laws anymore,” Franke said. 

Disagreement on the merits of the issue is not the only factor driving opposition from lawmakers. Pointing to Kacsmaryk's ascent to the federal bench as a Trump appointee, Democratic Senator Ron Wyden began advocating for the FDA to disregard his ruling before it had even been published. Wyden argues Kacsmaryk secured his seat, not for his legal prowess, but because his conservative views made him a lock for right-wing causes. 


This argument echos concerns that have percolated for years around the judiciary’s politicization — a contrast to Chief Justice John Roberts’ view that judges should be umpires calling balls and strikes. 

“I keep thinking of the vision of the judiciary that Chief Justice Roberts always articulates, and it's becoming harder and harder to sustain that vision,” Lawrence said.

“After the Dobbs case," Lawrence continued, referring to the 2022 ruling that overturned the federal right to abortion, "there was a strong sense that this was a hyperpolarized judiciary that was reaching out to make its docket and to be able to engage in decision making on abortion rights, on gun rights, on voting rights … and here district courts appear to be doing something similar in the abortion area with respect to this to this drug.”

Among lawmakers like Wyden, Ocasio-Cortez and Mace who say Kacsmaryk's ruling should be ignored, they say the District Court lacks authority to overturn FDA approval. Wyden says not only is did the mifepristone challenge come too late — FDA procedures typically allow only six years for approval challenges — but Congress has spoken on the matter as well. 

“If that wasn't clear enough, Congress cemented its approval again in 2007,” Wyden said in February on the Senate floor. “As part of an amendment to the Food and Drug Act, any drug — any drug — previously approved by the agency was deemed to be in compliance with new rules governing the Food and Drug Administration. Mifepristone is covered by that amendment made by the legislative branch. There is no reasonable argument to the contrary.” 

In this respect, the chasm between these lawmakers and legal experts on the ruling focuses on the process by which challenges are aired. 

“The legislators pass the laws, and the judges and the courts implement and interpret those laws,” Franke said. “And for legislators to say, 'No, I'm going to overrule a court decision because I don't agree with it, and I think that it's not based in a proper legal interpretation,’ they're out of their lane. That's not what legislatures do. That's what appellate courts do.” 

Creating a precedent for usurping judicial authority could have broad implications for American democracy as well. While abortion advocates are the ones protesting today with Kacsmaryk, it could be conservative challengers in another case, and another administration could choose to ignore that ruling as well. 

“The next case where there's a liberal judge who interprets trans rights or abortion rights or any other rights, environmental justice, in ways that the right wing doesn't like, and right-wing legislators say, no, we disagree with this ruling, at that point, the separation of powers that are set very clearly in our government — that the courts do one thing and legislators do another — that starts to unravel and that's a terrible problem for democracy,” Franke said. 

So far, the Biden administration appears to be avoiding these calls by lawmakers. A Health and Human Services spokesperson said to do so would create a dangerous precedent. 

“People are rightly frustrated about this decision — but as dangerous a precedent it sets for a court to disregard FDA’s expert judgment regarding a drug’s safety and efficacy, it would also set a dangerous precedent for the Administration to disregard a binding decision,” Kamara Jones, assistant secretary for public affairs at HHS, tweeted Sunday. 

Depending on the outcome of the case in Washington state, it might be difficult for the government to actually follow Kacsmaryk’s ruling.

“What is the FDA supposed to do with these two conflicting instructions from two different federal courts,” Franke asked. “What are doctors supposed to do in terms of whether they can still prescribe or pharmacies distribute mifepristone? It is confusing, and that's part of the problem with these national injunctions, which are a new trend in the federal courts.” 

The strain between the judiciary’s rulings and the executive’s enforcement power is not new. In 2020, after the Supreme Court ruled that his administration went astray of the rules to end the Deferred Action for Childhood Arrivals program, former President Donald Trump was defiant in accepting new DACA applications. But the 5-4 ruling did not completely preclude Trump from creating a new strategy to end the program. 

If the Fifth Circuit or the Supreme Court sides with the FDA, it could moot the call from lawmakers for Biden to ignore Kacsmaryk's ruling.

While the judiciary could be hamstrung if the public decided not to follow its rulings, it is not completely helpless in providing a solution before the country arrives at that juncture. 

“At this point, the question is what's the best way to proceed today, and I would think a good place to start would be enforcing the guardrails that the early courts put in place about such things as standing, which were designed precisely to keep the courts within their lanes,” Lawrence said. 

Follow @KelseyReichmann
Categories / Appeals, Government, Health, Law

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