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: a federal judge in Texas named Matthew Kacsmaryk. In the coming weeks, there is a very real possibility that Kacsmaryk will single-handedly outlaw medication abortion in all 50 states, massively disrupting access to reproductive health care across the entire country. Worse, there is a substantial likelihood that higher courts—including the Supreme Court—will let him get away with it.
Let’s be clear that the legal battle over medication abortion became inevitable the moment Roe fell. Over the past 50 years, reproductive health care has undergone a dramatic shift: A majority of American patients now terminate their pregnancies with pills rather than by undergoing a procedure at a clinic. This makes good sense, as medication abortions are 18 times safer than childbirth, very reliable, and easy to access. In the 23 years since the FDA first approved the “abortion pill,” the agency has slowly loosened restrictions on prescriptions (though regulations remain irrationally stringent for the minimal risks of these pills). Meanwhile, a booming gray market for the medication has sprung up online following the end of Roe. Today, virtually anyone anywhere in the United States can order pills to their door, legally or otherwise. This infuriates anti-abortion activists who wanted to see this issue settled with the clinic closures and vigilante laws that followed S.B. 8 and Dobbs.
But these activists think they have a solution to the pill problem: ban mifepristone, the first drug taken in the two-drug medication abortion protocol approved by the FDA, which ends the pregnancy. Rather than work through their elected representatives or popular votes, they are attempting to do this via a lawsuit seeking a nationwide injunction. They’re represented by the far-right Alliance Defending Freedom; Erin Morrow Hawley, wife of GOP Sen. Josh Hawley, is a lead attorney.
The suit was filed in the remote Amarillo division of the Northern District of Texas. No, there’s no specific connection between Amarillo and abortion pills. The plaintiffs only filed there because they were guaranteed to draw a single judge: Kacsmaryk, whom Donald Trump placed on the bench in 2019. Before donning his robe, Kacsmaryk served as deputy general counsel at the far-right First Liberty Institute, where he fought LGBTQ equality, abortion, and contraception. (He once said that being transgender is a “delusion” and scorned “secular libertines” who sacrifice children to their “erotic desires.”) Since his confirmation, he has gained a reputation as perhaps the most lawless jurist in the country.
If that sounds like an overstatement—and to be sure, the competition is stiff—consider just a portion of his record: In less than three years, Kacsmaryk has seized control over border policy, repeatedly defied the Supreme Court’s decision protecting LGBTQ employees, and restricted minors’ access to birth control. It was probably inevitable that anti-abortion crusaders would shop their case to him.
And yet, to call this lawsuit a “case” is giving it too much credit. There are three fundamental flaws in the plaintiffs’ claim against mifepristone. First, none of the individuals filing the suit have a remotely plausible claim to standing, meaning the ability to sue in federal court. To establish standing, they would have to prove that the FDA’s approval of mifepristone—which happened 23 years ago—injures them personally.
This they cannot do. The plaintiffs are anti-abortion medical associations joined by anti-abortion doctors. Their claim is that some future patient might take mifepristone, suffer a rare side effect, then come to their practice for help, and that would qualify them for relief in federal court. But this claim rests on multiple layers of speculation and contingencies, exactly the kind of hazy conjectures that do not establish standing. There is no evidence that any of the doctors currently face this problem; it is pure hypothesizing. There is certainly not evidence that anyone is suffering the exaggerated, catastrophic side effects the plaintiffs fabricate in their brief. And even if there were, it would not establish standing, because there are too many other factors that might have led this particular patient to this particular doctor’s office. In legal terms, the injury is not “fairly traceable” to the FDA’s approval of the drug. Otherwise, any doctor could challenge the approval of any medication that allegedly could harm their future patients, opening the floodgates to endless physician suits against thousands of drug approvals over previous decades.
Turn to the merits, and a second flaw quickly emerges: The plaintiffs’ substantive arguments are ridiculous. They accuse the FDA of fast-tracking mifepristone (in 2000) and ignoring potential adverse reactions. What they are doing here is effectively disputing the conclusions of the agency’s scientists. Yet the FDA compiled a voluminous record over the more than two decades since approval justifying every single decision it has made about the drug, and fulfilling all of its legal obligations. To boot, in an upcoming paper on abortion pills by professors David Cohen, Greer Donley, and Rachel Rebouché, the authors note that “after more than twenty years on the U.S. market, mifepristone has become one of the most studied drugs available and has proven to have an impeccable safety profile—many times safer than common drugs like penicillin or Viagra.” A private party’s cherry-picked attempt to disagree with two decades’ worth of scientific analysis and peer-reviewed scholarship does not give a court the authority to pull a drug from the market.
This issue of authority and expertise leads to the suit’s third flaw: Never before has a federal judge imposed a ban on a particular drug by wholly revoking FDA approval. That is what the plaintiffs demand, yet it is an unprecedented step that would radically disrupt the entire existing health care system. The plaintiffs want Kacsmaryk to outlaw mifepristone in every state, abruptly halting doctors’ ability to prescribe the drug. Given that a majority of patients use abortion pills, this move would overwhelm providers, creating monthslong waitlists for abortion procedures even in deep-blue states. The result would be an unprecedented backup as people sought to get procedures instead, and likely thousands of patients—in states like New York or California or really anywhere—would be unable to obtain an abortion in time, even if state law protects their right to do so.
All this appears to be a pile of partisan frippery that should never have been filed and could never be taken seriously in the federal courts. But this leads us to the actual, enduring problem: The lawsuit, as absurd and frivolous as it is, stands a significant chance of succeeding. And that reflects how much has changed in the legal landscape in a very compressed amount of time. It’s not merely that a single Trump appointee can scupper an entire national health care regime with the scratch of his pen—the dangers of judge-shopping and national injunctions have been clear for years now. And it’s not just that the 5th U.S. Circuit Court of Appeals—one of the most activist, conservative courts in the country—would likely sign off on a wild-eyed judge-imposed abortion ban. (This is the court that allowed S.B. 8 to go into effect months before Roe was overturned, and the court that just granted alleged domestic abusers the right to keep their guns.)
Lower courts have gone rogue before. What’s changed much more recently is that we can no longer rely on SCOTUS to rein them in. In years past, we could say with some certainty that merit-free attempts like this one would at least be stopped at a Supreme Court in possession of some regard for precedent, predictability, and how far is too far. In our post-Dobbs landscape, that is just no longer true. It was, after all, the Supreme Court that permitted S.B. 8 to become law. Why would this court bother to balk at another lawless attempt to end abortion? It has all but invited this type of risky, meritless intervention by blessing the last one.
That brings us to the biggest problem of all. We will see more and more of these scandalously frivolous claims succeed precisely because the Supreme Court has changed so much, so quickly. Lower courts are racing to push the limits of law and daring the conservative justices to stop them. It is now obvious to all that five justices will gladly rewrite precedent without any warning or justification in a way that will upend long-settled expectations. That opens the door to a kind of nihilistic and perverse ingenuity that used to be scorned by the third branch.
The very weakness of this litigation—the lack of real standing, the blunderbuss attack on federal agencies, the extraordinary scope of the relief sought—are the seeds that have been planted by this newly constituted Supreme Court supermajority coming to fruition. The conservative justices have already brushed away standing requirements in order to weaken civil rights laws; severely weakened the EPA and the CDC; and let rogue judges seize power from the Biden administration. This conservative supermajority has used the shockwaves of recent reversal of precedent and dismantling of existing tests to lay the tracks for the next shocker.
Overturning Roe was not the terminal point in the decades-long journey to limit reproductive rights; it’s barely even the start. Maybe this is the moment in which we ask ourselves why so many of us are still surprised; why we are still caught off guard when a court arms alleged domestic abusers, or limits access to birth control, or—stay tuned—criminalizes medication abortion everywhere. The crisis here is not just that a federal judge could imminently ban an abortion drug that’s been used safely for 23 years. It’s that the chaos wrought by Dobbs means anything is possible, and no one—not even in the deepest blue states—can go to bed with any certainty that they will wake up with their rights intact. That is the legacy of today’s Supreme Court: No one can ever really know what new nightmares tomorrow will bring.