What a week we’re having. First, let’s look at last night’s abortion pill decision. Mark Joseph Stern writes at Slate:
On Friday evening, U.S. District Judge Matthew Kacsmaryk of Texas issued an unprecedented decision withdrawing the FDA’s approval of mifepristone, the first drug used in medication abortion, 23 years after it was first approved. His order, which applies nationwide, marks the first time in history that a court has claimed the authority to single-handedly pull a drug from the market, a power that courts do not, in fact, have. Kacsmaryk’s ruling is indefensible from top to bottom and will go down in history as one of the judiciary’s most shocking and lawless moments. It goes even further than expected, raising the possibility that he will impose “fetal personhood,” which holds that every state must ban abortion because it murders a human. Within an hour of its release, the decision also spurred the start of a constitutional crisis: A federal judge in Washington swiftly issued a dueling injunction compelling the FDA to continue allowing mifepristone in 17 states and District of Columbia, which brought a separate suit in Washington.
Kacsmaryk stayed his decision for one week to let the Biden administration appeal, but his ruling stands a good chance of being upheld at the radically conservative 5th U.S. Circuit Court of Appeals. If his order takes effect, the FDA will be faced with competing, mutually exclusive court orders requiring the agency to simultaneously suspend mifepristone nationwide and preserve access to the drug in 18 blue jurisdictions. The agency cannot comply with both orders at once. And because Kacsmaryk’s is broader, covering all 50 states, it guarantees that mifepristone will be suspended in much of the country. Only the Supreme Court can resolve this looming crisis, and it has a very limited window of time in which to do so. It has been less than a year since the court claimed to rid itself of the abortion issue. Now it must decide whether American patients will lose access to an abortion drug that has been on the market for 23 years and proven safer than Tylenol—on the order of a single, rogue judge.
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.) His decision repeats the ridiculous and objectively false conspiracy theory about mifepristone—that the FDA illegally rushed its approval in 2000 at the behest of former President Bill Clinton, the pharmaceutical industry, and population control advocates. Kacsmaryk flyspecked the FDA’s assessment of the drug, concluding that its studies were insufficient and that the agency “acquiesced to the pressure to increase access to chemical abortion at the expense of women’s safety.” And he claimed that he had authority to revisit an FDA approval that occurred 23 years ago because the agency happens to have changed rules around the dispensation of the drug several times since.
It’s likely mifepristone will become unavailable for at least a while, which should certainly cause the backlash to the Dobbs decision to grow even stronger. The forced birth zealots cannot help themselves, however. And if a judge can just magically overrule the FDA for pretend reasons, just imagine the wingnut judges who will try to outlaw birth control pills and covid vaccines.
But the big takeaway from the radical and unprecedented decision to ban Mifepristone is this: The anti-abortion movement has always been an anti-democratic and authoritarian movement, and that authoritarianism has taken over the Republican Party and the far-right judiciary. This decision was not about life or women’s health or drug regulation or even the law (it really, really wasn’t about the law). It was a simple assertion of dominance, a clear statement that the right will stop at absolutely nothing – including the outer bounds of American law – to force women into compliance.
It is entirely about control.
And this is just a preview of what’s to come.
I could write about how this decision lays bare the lie of ‘states’ rights’, or how a singular activist judge being able to wave away decades of science and progress is a sign of our decaying democracy. I could write out the ways that the FDA could respond, or what the Biden administration should say and do. But others will do a better job of all that. Besides, that’s not at all what’s on my mind.
What’s weighing on me—almost literally, my head and body feel heavy—is the look on my 12 year-old daughter’s face each and every time I have to tell her another piece of bad news about women. But it’s not just her face I keep seeing. It’s the looks on the faces of the men who are ruining us.
Donald Trump. Brett Kavanaugh. Matthew Kacsmaryk. Smug and assured, ignorant and shameless. Somehow we’ve ended up with the dregs of humanity robbing us of our own.
What makes this all so much worse is that men like these actually do think they know better than we do. In spite of their absolute mediocrity and near-unbelievable idiocy, these men truly believe they are the ones best suited to make decisions about our bodies and futures.
Kacsmaryk, with his self-satisfied smirk and Proud Boy haircut, is just the latest in a long line of men brimming with misogyny and undeserved power. Men like him have existed forever and they continue to be everywhere.
Hmm, self-satisfied smirk. What does that remind me of? How about Tennessee state representative Andrew Farmer talking down to representatives Justin Jones and Justin Pearson? He might as well have just said “I’m the White Man and I’m telling you Black boys how you need to behave.”
As Elie Mystal said on MSNBC a couple of nights ago, “Tennessee is giving a more abject lesson in Critical Race Theory than any AP History course possibly could.”
Basically, Republicans have been boiled down to their core of privileged White men who believe they are entitled to control the rest of us. And they aren’t going to change. The only way the Party can change is if its current membership is replaced, somehow. Don’t tell them I said that, though; it’ll trigger their Great Replacement Theory fears.
The New York Times is reporting that Jones and Pearson might be reinstated soon, possibly as early as next week. There appears to be strong support in their districts for returning them, and not waiting around for a special election. The expulsion of these representatives appear to be part of a pattern of the mostly white legislature picking on largely black cities. For example, “Nashville sued the state last month over a law that would slash by half the size of the council, which governs Nashville and Davidson County.”
There are also reports that the White Men in the state capitol have threatened to take funding away from projects in the Memphis area if Justin Pearson is returned to the legislature.
But make no mistake, the expulsion of two Black men from the Tennessee legislature and the mifepristone ruling from the smirking Judge Kacsmaryk are coming from the same place.
And the fallout from the revelations about Justice Clarence Thomas continues. I don’t think there’s any way to touch Thomas short of impeachment and removal, which is not going to happen in the current Congress. But, again, this episode does hand a lot of political capital to the people who want to make changes to the Court. And the current Congress won’t last forever.