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

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

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