The Abortion Pill Case Is About Who Makes the Rules in America

Right now, the country is waiting on one judge in Texas to make a ruling. The ruling is supposed to determine whether access to a drug that, as part of a two-step process, causes an abortion will be curtailed. At least, ostensibly, that is what the ruling is about—whether the Food and Drug Administration was wrong to approve this drug when it did so 22 years ago. This ruling will certainly have serious, dramatic effects on access, and therefore on real women’s lived lives. More than half of all abortions are done via mifepristone, the drug whose approval is now in question, along with misoprostol. While it’s possible to offer the same medication abortion with misoprostol alone, it’s more painful for the patient and has a lower success rate. Already there are stories of pharmacies that are afraid to carry and fill orders for these drugs, even when they are prescribed for other reasons—Walgreens, for instance, has said it will not offer mifepristone in 20 states, including some where abortion is legal.* There is no question that a ruling in this case against the FDA’s approval will have real chilling effects on Americans’ access to reproductive care, even in states that responded to the end of Roe v. Wade by attempting to improve access to care.

But this case is not really about whether mifepristone remains accessible, and FDA-approved. What this case is actually about is the same thing every abortion battle over the past five decades has been about: Who has power in America? Indeed, who holds the power and who doesn’t has been the fundamental question about abortion rights ever since they were left out of the Constitution in the first place, because women sure didn’t have any power when it was written. But the mifepristone case is the first one to show us the full amount of havoc that has been wrought on our legal system thanks to the Supreme Court’s decision to overturn Roe last June. It’s funny, really, considering all of the hypothetical things yet to emerge that could have exposed the fractures and ruptures that Dobbs caused—a doctor defying the law to serve a patient’s mental health, an interstate travel ban, an underground abortion clinic. It’s strange that it’s a 22-year-old FDA approval process of a commonly used and incredibly safe drug that seems to be the thing that will break the illusion that Dobbs does not affect all of us. But that’s how this is all shaping up.

Reports from the Texas courtroom today, where Judge Matthew Kacsmaryk spent four hours hearing arguments, indicate that the Trump appointee seemed open to the argument that the FDA did indeed rush the approval of the drug. It’s hard to describe how fundamentally absurd and dishonest these arguments are, but several of my colleagues have tried. I think it’s worth revisiting their points, which help explain why this random district judge has become such a point of focus for the entire freaking country. Merritt Tierce, who wrote one of the most searing and memorable pieces in recent years on the stakes of abortion within a woman’s life, actually read the complaint to understand what the arguments were. Not only are the anti-abortion groups at the center of this case arguing that the FDA “rushed” when it approved a drug that was already approved in Europe following a four-year process—and now two decades later has been shown to have a safety record that puts it on par with Tylenol. They are also claiming that doctors are harmed by this drug because when it malfunctions (again, at a rate comparable to Tylenol) it distracts them from their current patients, and that OB-GYNs specifically are harmed by the drug because when abortions happen, it denies these doctors money-making opportunities. Seriously.

More important than the terrible arguments being proffered here is the technical question of why a single judge in Texas might even have the right to overrule the FDA on a question that is ostensibly a medical one. As David S. Cohen, Greer Donley, and Rachel Rebouché pointed out in Slate, he really can’t. Like any judge, Kacsmaryk has no direct authority to order the FDA to withdraw the drug’s approval—instead, “he should only be able to order the agency to start the congressionally mandated process, which involves public hearings and new agency deliberations. This could take months or years, with no guarantee of the result.” If he does rule against the drug’s approval, the FDA ought to be able to defer to the very precise congressionally mandated guidelines for how it participates in the process. The agency could also pretty easily circumnavigate the restriction by noting that they have made an exception for enforcing the use of this drug due to its safety profile, allowing it to continue to be prescribed around the country. In the meantime, they can appeal the decision up through an appeals court.

If Kacsmaryk does rule against mifepristone, and if the FDA responds by telling people it will effectively not enforce that ruling on the judge’s behalf, it will be a real situation of conflicting orders from two opposing powerful entities. So far, when this has happened in the situations surrounding abortion, the threat being scared up by anti-abortion forces has won out. The women who filed their suit in Texas just last week underscore as much—in the face of post-Dobbs restrictions on abortion, doctors have generally acted so conservatively that they have been willing to cause dire harm to their patients. (The threat of a 99-year prison sentence will have that effect.) I can only hope that the mifepristone case stands to be different, partly because Judge Kacsmaryk’s ruling will apply to the entire country, including blue states (and red states) that have overwhelmingly voted or legislated to keep abortion accessible. I suspect they might be upset by it—so upset that the Biden administration will likely have to figure out how to respond, and possibly even how to intervene. There will be a jousting, and attempts to determine whose rules are the rules we all have to live by, probably between the man in the Amarillo courtroom and the man currently residing in the Oval Office. (Never mind that the pregnant people who will still seek abortions will in the meantime either continue to access the drug illegally or resort to more dangerous methods to end pregnancies.)

Which brings us to the last reason why this case is so horrifying—why it is such an example of the disruption to the rule of law that Dobbs has brought. As Dennis Aftergut and Laurence H. Tribe wrote in Slate earlier this week, a ruling against mifepristone accessibility “would exceed what the Supreme Court did in last June’s Dobbs decision, overturning Roe v. Wade but at least leaving women’s reproductive rights intact in states that opt to respect them.” It would attempt to prohibit access to the drug everywhere. This is not how this is supposed to work—only through the machinations of heavily funded anti-abortion groups exploiting an absurd jurisdictional loophole have we arrived at the point where one man could have so much power over the rest of the country. As Aftergut and Tribe wrote:

What’s happening is not mere “judge-shopping,” as many have called it. That term is traditionally used to describe an individual’s search for a nearby court inclined to rule favorably.

By contrast, here there’s a coordinated national strategy, enabled by a district court federal bench, to bring right-wing legal causes into a single courtroom where a favorable result is a sure thing and where fair-minded appellate review has also been hijacked.

Why should Americans listen to this judge? The arguments are insane, and the reach is beyond anything that even this Supreme Court saw fit to order in its radical Dobbs decision. The anti-abortion forces have attempted to force their way, via carefully structured majority rule, into the most intimate spaces and choices of American families, and so far, they have succeeded. That this reality hasn’t fully sunk in for most of the country yet feels like it cannot last past whatever they do here.

Much has been said about the Republican effort to hijack that court—the blockade of Merrick Garland’s nomination, the subsequent rushed confirmation of Amy Coney Barrett, and the unbelievable antics Mitch McConnell went through to orchestrate it all. That entire endeavor, enabled by presidents who lost popular votes but who still coasted to victory thanks to the dedication of evangelical voters who pursued power on the court for the purposes of overturning Roe as a sole political aim, has been destructive enough to cost the Supreme Court a huge chunk of public trust and has threatened its legitimacy. But the effort in one Texas courtroom is somehow an even more naked, absurd power grab—with real costs to people’s real lives, with the real possibility to disrupt the entire order of a system that we rely on to understand our governance.

If this judge rules against mifepristone, he is trying to say that he has the authority over the FDA, the power to tell you that you do not have the right to the safest and best way to have an abortion at home, even in a blue state that has voted to secure the right. He thinks he is the one with the power. The question will soon be—why should we listen to him?