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.