Before the supreme court overturned Roe v Wade last June, the conservative line on the American judiciary was fairly consistent: judges should be careful interpreters of the rules, not activists; legislatures should decide policy, while courts should simply enforce the law.
That was, of course, never true – conservatives have always been thrilled with judicial activists, as long as those activists moved the law to the right. But our post-Roe era has showed just how bankrupt conservative claims to judicial continence are. And perhaps no case – other than Dobbs v Jackson Women’s Health, which overturned Roe – has revealed this rank hypocrisy as much as the decision by a rogue Texas judge to ban mifepristone nationwide.
Earlier this month, Judge Matthew Kacsmaryk of Texas issued a stunning ruling: he overruled the FDA’s authority and set aside two decades of drug safety records to say, possibly for the first time ever, that a drug approved by the FDA would no longer be legal in the United States. The drug in question was mifepristone, a common part of a two-drug combination used to induce safe abortions in the United States. The other drug, called misoprostol, was not at the center of this particular case and can be used on its own as a highly effective abortion method, but the anti-abortion movement will certainly try to ban it, too.
Mifepristone is not only extremely safe, it’s tightly regulated. Abortion rights advocates have long complained that the FDA significantly overregulates mifepristone and misoprostol for political reasons – because they induce abortions (among other uses), the agency is extra cautious. That caution, though, has led to impeccable documentation of any adverse events related to mifepristone, and what the agency has found in 23 years of data is that mifepristone is overwhelmingly safe. It is safer than Tylenol, penicillin and insulin. Many hundreds more people have died from Viagra than have died from mifepristone. The drug is politically controversial, but it is about as medically sound as a drug gets.
And yet Kacsmaryk banned it anyway, citing safety concerns. If judicial safety standards preclude mifepristone from being on the market, then those same safety standards should pull many incredibly common medications, including most antibiotics, from pharmacy shelves.
It’s difficult to overstate just what a shocking act of judicial overreach this is and how badly and brazenly Kacsmaryk has abused his power. If a federal court can overrule the authority of the FDA and judges – not experts in food and drug safety – can simply decide which drugs they believe Americans should and should not have access to, America’s entire food and drug safety scheme could be thrown into chaos. This is the same point made by more than 400 leaders in the health, drug and biotech industries – none of whom, by the way, work for companies who make mifepristone – in a statement saying: “If courts can overturn drug approvals without regard for science or evidence, or for the complexity required to fully vet the safety and efficacy of new drugs, any medicine is at risk for the same outcome as mifepristone.”
Kacsmaryk’s decision was partly overturned by the fifth circuit court of appeals, but the judicial malpractice continued. The fifth circuit said that mifepristone wouldn’t be banned, but the court nevertheless deemed itself competent to dictate the drug’s usage and distribution, saying that it cannot be used past seven weeks of pregnancy (the FDA had expanded its use until the 10th week, based on more than two decades of evidence that doing so was safe) and cannot be sent by mail.
Yes, the fifth circuit’s decision means that mifepristone remains on the market. But it’s no less offensive and abusive of the law than the lower court’s. Courts must be very careful to not usurp power they are not entitled to and don’t know how to wield, and judges, even very smart ones, are not experts in food and drug regulation. This opinion is setting Americans up for a very troubling future, where we cannot depend on the FDA to regulate drugs, but rather have to hope that power-mad men and women on the bench don’t decide to strip important medications from our hands.
The broad conservative silence on this case has also been telling. The anti-abortion movement and their benefactors in the Republican party are of course not happy simply outlawing abortion in conservative states; they want abortion banned nationwide. And they are more than willing to compromise whatever principles they claim to have in order to get their way.
Before Roe was overturned, the conservative movement often borrowed from Justice Clarence Thomas to argue that the role of the court is to “interpret and apply written law to the facts of particular cases”. Roe, they said, didn’t do that, but rather made up a new right wholesale. Many more progressive lawyers and legal theorists – a dozen or so supreme court justices past and present, several of them appointed by Republicans included – would disagree, but the rightwing line has been that the supreme court overstepped in Roe, and Dobbs was the correction. In Dobbs itself, the court held that “the authority to regulate abortion is returned to the people and their elected representatives”.
Except, of course, mifepristone wasn’t just nearly banned and then radically scaled back by the people and their elected representatives. It was nearly banned and then radically scaled back by activist judges. But some of the same conservative organizations that less than a year ago were demanding judicial fealty to the law are now applauding when judges go far beyond it.
There is a simple reason for this: the American right has taken a hard authoritarian turn, away from democratic norms and conservatives are happy to espouse one principle for their political opponents that they have no intention of following themselves. From free speech to free and fair elections, the right routinely criticizes the left for the most minor of perceived infractions, only to engage in enormous violations of rights and freedoms when they have power. The supposed conservative fealty to judicial self-restraint was only a useful cudgel; it was never a real, deeply held ideal.
The right’s problem now is that they radically misjudged the American population on abortion. It seems they had perhaps drunk their own Kool-Aid and convinced themselves that the US was actually an anti-abortion nation, or that at least voters in conservative states wanted to see aggressive abortion bans. They were wrong: Americans want abortion to remain legal in most cases and more than twice as many Americans want medication abortion to be legal in their state as want it banned. Everywhere abortion rights have been on the ballot since Dobbs, abortion rights have won.
This is bad news for conservatives. Their stated goal – get abortion rights out of the hands of activist judges and return the question to voters – has come to fruition, but voters want abortion to remain available. And so conservative groups are turning to activist judges to do things their way.
The rightwing frenzy to ban abortion has been overwhelming and it seems like every day there’s a new headline – a new state criminalizing the procedure, another woman injured or near dying because she couldn’t get a safe abortion thanks to these bans. But even in the midst of so much, we can’t ignore the utter hypocrisy from the right when it comes to judicial activism – especially when, as here, the activism undermines one of the most important federal agencies for keeping us all healthy and safe and an anti-abortion judge has put every single American’s health at risk in the name of “life.”
Jill Filipovic is the author of the The H-Spot: The Feminist Pursuit of Happiness