When the Supreme Court overturned federal abortion rights last June, Justice Samuel Alito’s majority stressed that “it is time to look to the Constitution and return the issue of abortion to the elected representatives of the people.”
Justice Brett Kavanaugh went further, separately stressing that the dispute would now be about state officials and that judges would no longer take up the “difficult moral and political questions” related to when a woman is allowed to terminate a pregnancy.
But Wednesday’s drama in a Texas courtroom over medication abortion shows that judges remain at the center of abortion access in America and raises the possibility that another battle over reproductive rights could soon reach the high court.
Whether Kavanaugh was trying to downplay the implications of June’s stunning decision or was ignoring the persistence of anti-abortion foes, he and the conservatives who secured the 5-4 ruling failed to recognize the kind of controversy now before Justice Matthew Kaczmaric.
A single federal judge—not a duly elected state legislature—is able to shut down access to an abortion drug and block women seeking to end a pregnancy even in states where the procedure is still legal. Such an order could sweep nationally, rather than being confined to one state.
This new packed chapter, accompanied by staged protests and increased courthouse security, reveals how America’s abortion wars have only intensified since the June 24, 2022 decision in Dobbs v. Jackson Women’s Health Organization.
Oral arguments offer a partial glimpse into a judge’s thinking, but during Wednesday’s four-hour hearing in an Amarillo courtroom, Kacsmaryk signaled he’s open to challengers trying to overturn the FDA’s approval of the drugs. abortion. A 2019 appointee of former President Donald Trump, Kaczmaric previously served as deputy general counsel at the First Liberty Institute, a conservative Christian legal advocacy group and has expressed anti-abortion views.
The case began last November when a group of anti-abortion organizations and doctors filed their appeal in Kacsmaryk’s district – a move apparently aimed at securing a sympathetic lawyer. Challengers called on him to take the unprecedented step of ordering the FDA to withdraw approval for mifepristone, the first of two drugs used to abort a fetus.
FDA authorization dates back to 2000, and today medication abortions account for slightly more than half of all abortions in the US.
As the challengers made their case against the FDA in written submissions, they cited the removal of constitutional protection by the Dobbs decision. But as Cavanaugh, who voted no, pointed out, states still have the power to keep abortions legal within their borders.
“To be clear, then,” Kavanaugh wrote in his concurrence, “the Court’s decision today does not ban abortion across the United States. Instead, the Court’s decision rightly leaves the issue of abortion to the people and their elected representatives in the democratic process. Through this democratic process, the people and their representatives can decide to allow or restrict abortion.”
The second of former President Donald Trump’s three Supreme Court appointees, Cavanaugh said the Dobbs decision “does not prevent the numerous states that allow easy abortion from continuing to allow abortion. This includes, if they choose, the friendly states supporting the plaintiff in this Court: New York, California, Illinois, Maine, Massachusetts, Rhode Island, Vermont, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Michigan, Wisconsin, Minnesota, New Mexico, Colorado, Nevada, Oregon, Washington and Hawaii.”
The legality of the procedure in these states could mean little, however, without access to the necessary drugs.
When the Supreme Court overturned federal abortion rights last June, the justices disagreed about the implications for future abortion litigation. Three dissenting justices warned that it would keep federal judges in the “sphere of controversy,” leading them to “further engage in hotly contested issues, including moral and philosophical ones.”
Those three (Sonia Sotomayor, Elena Kagan and the now-retired Stephen Breyer) cited potential threats to medication abortions in their dissent.
“Today’s majority decision raises many questions about interstate conflicts,” they said. “Can a state prohibit women from traveling to another state to obtain an abortion? Can a state ban out-of-state abortion advertising or help women reach out-of-state providers? Can a state interfere with the shipment of drugs used for medical abortions? The Constitution protects travel and speech and interstate commerce, so today’s decision will raise a number of new constitutional questions. Far from removing the Court from the abortion issue, the majority places the Court at the center of the coming “interjurisdictional abortion wars.”
In the Texas case, the anti-abortion coalition argues that the FDA has failed to adequately review the safety and effectiveness of abortion drugs over the past two decades. Seeking immediate action from Kacsmaryk, they wrote in their filing, “Without an order, these dangerous drugs will lead to physical complications, emotional trauma and death for women.”
The FDA counters that mifepristone has been proven safe. Its lawyers point to the agency’s expertise and say the Alliance for Hippocratic Medicine wants to “overturn this longstanding scientific determination based on speculative claims of harm.”
In the Dobbs decision, Chief Justice John Roberts partially aligned himself with liberals in arguing against wholesale overturning of Roe v. Wade. But he refused to sign any of their joint dissents and wrote separately that he would have supported Mississippi’s controversial 15-week abortion ban — and went no further.
Cavanaugh denied this stance. Any permanent right to abortion, he wrote in a phrase repeated throughout his opinion, “shall be decided, as the Constitution provides, by the people and their elected representatives through the constitutional processes of democratic self-government.”