As expected, Judge Kacsmaryk has ruled mifepristone illegal, ignoring every scrap of science and law to impose the will of the anti-abortion movement. At the same time, a judge in Washington state ruled that the FDA must keep mifepristone available, though this ruling was not for the entire U.S. (gift link).
This conflict will no doubt be sent to the Supreme Court, and quickly. Pro-choice forces are moving consistently against Republicans as election defeats pile up. If the Supremes rule in such a way that abortion becomes unavailable across the states, pressure for change from women and progressives will only get stronger. What that might look like is hard to say, but we are down to a fundamental clash here between the two incompatible sides of our electorate, and I can only hope the conflict doesn’t turn even more bloody.
Mark Joseph Stern, at Slate, has an opinion, and he lays out all the errors and lies in detail:
The Lawless Ruling Against the Abortion Pill Has Already Prompted a Constitutional Crisis
This unprecedented abuse of judicial power with no basis in law or fact will soon force the Supreme Court’s hand.
…It is probably impossible to count how many errors, exaggerations, and lies Kacsmaryk, a Donald Trump appointee, put in his decision. The judge appears to have largely copied and pasted the briefs filed by the anti-abortion group that filed the suit, the Alliance Defending Freedom, rephrasing their arguments as his own analysis. (This was predictable—Kacsmaryk himself is a staunch anti-abortion activist—and might be why ADF handpicked him specifically to hear the case for them.)…
From start to finish, Kacsmaryk’s opinion reads like a screed penned by an anti-abortion activists—because it largely is. At one point, he deemed fetuses to “arguably” be “people” who are killed by mifepristone, seeking to establish the “fetal personhood” that has always been the end goal of the movement. For support, he cited a brief by anti-abortion advocate Robert P. George asserting that the Constitution compels every state to outlaw abortion…
In truth, the reasoning goes beyond that. Through the combination of Comstock Act enforcement and fetal personhood, Kacsmaryk is laying the groundwork for a federal ban on abortion imposed through the courts. He knows such a ban could never be enacted through the democratic process. So he is apparently intent on delivering it through the judiciary, instead….
Yes, Kacsmaryk is trying to use Anthony Comstock’s chastity laws from the 1800s to force this change today, to make it illegal to provide pills by mail, or even to provide abortion information as I have on this site. This simply can’t be allowed to stand, but until it works through the Court system, we’ll have to take things day by day.
I will have a post for you next week on self-managed abortions with links to some resources we’ll all want to keep handy. I don’t think this fight will be over soon.