In a way, Matthew Kacsmaryk – the Trump-appointed federal district court judge in Amarillo, Texas, who issued a sprawling and aggressive injunction on 7 April that would have removed the abortion drug mifepristone from the market – did the supreme court’s conservative majority a big favor: he made them look reasonable by comparison.
On Friday, after days of anxious waiting for abortion providers, the pharmaceutical industry and American women, the supreme court declined to allow Kacsmaryk’s stay – and another, also dramatic ruling from the fifth circuit court of appeals – to go into effect. The court that destroyed the abortion right last year thereby preserved the availability of the most common abortion method – at least in the dwindling number of states where abortion remains legal at all.
The ruling came on the court’s shadow docket – that body of informal but increasingly important choices made by the justices, once largely procedural but now often binding and merits-based, in which the court hears no oral arguments and in which they do not need to disclose their votes. Still, we have a decent guess about how the votes broke down, because two of the justices – Clarence Thomas and Samuel Alito – noted publicly that they would have allowed the drug to be pulled from distribution.
It’s possible that other conservative justices agreed with them, but it seems clear that at least one of them didn’t: in a four-page written dissent, one which had little in the way of legal argument but an abundance of sniping and peevish grievance, Samuel Alito took a swipe at several of his female colleagues over their approach to shadow docket rulings, including his fellow conservative Amy Coney Barrett.
It seems reasonable to deduce, then, that even among the supreme court justices who overturned women’s rights to control their bodies and lives, there is sharp intra-Republican disagreement over how to handle the unexpectedly virulent political fallout from the Dobbs decision. Like their counterparts in Congress and on the campaign trail, the Republicans on the supreme court may be looking to put a gentler spin on abortion bans, or to shore up their own dwindling legitimacy by scorning legally sloppy and thinly pretexted orders like Kacsmaryk’s.
Several members of the court have long preferred to have better, more robust excuses for their cruel and myopic transformations of the law – Chief Justice John Roberts, in particular, has always preferred to attack voting rights, women’s rights and other pillars of pluralist, representative democracy in the most respectful possible fashion. It’s not he and those like him are not rabid conservatives, eager to do violence to the traditions and aspirations that make the US worthwhile. It’s that they prefer the kind of violence that wears a suit.
Not so with Alito and Thomas – and not so with their successors, like Kacsmaryk, the fifth circuit panel, the heavily conservative federal judiciary and the rest of the increasingly emboldened conservative legal movement. These are the rightwing players who want to seize the moment, to take advantage of the uneasy and unsustainable political state of affairs in the US where legislative gridlock means that lawmaking and policy power has been delegated almost entirely to a captured and unchecked court system. The problem, for institutionalists on the court like Roberts and possibly Barrett, is that going as fast as the supreme court has been going makes them look bad. The court has never been so unpopular as it has become since Dobbs; dramatic reforms, like term limits and court expansion, have never had as much broad support as they do now. And so we may see some tensions arise within the supreme court’s six-judge conservative supermajority: the ideologues want to hit the gas, and the institutionalists want to pump the breaks. But rest assured that they’re all driving in the same direction. Do not let the mifepristone ruling fool you about where this extremist court is going.
In the end, what might be most distressing about the fiasco that unfolded as the nation waited for the supreme court’s ruling was realizing just how far the Overton window has shifted, and just how low the standards for women’s health and freedom have sunk, in the months since Dobbs. For days before the court issued its order, developments that could only been fairly understood as grave insults to women’s dignity were instead pitched as mercies or signs of moderation.
Kacsmaryk, a lifelong anti-abortion activist, issued an order consisting of bunk science, anti-choice rhetoric, novel interpretations of both standing doctrine and statutes of limitations, and a remarkably expansive interpretation of the federal judiciary’s power over the Food and Drug Administration; but when he stayed his own injunction from going into effect for seven days, we were meant to greet the delay with relief. When the fifth circuit then said that mifepristone’s availability should be curtailed back to its pre-2016 status – which involved a densely bureaucratic and labyrinthine process of multiple doctor’s appointments to get the medicine, and medically unnecessary gestational limits on its use – we were meant to be happy, because technically, that ruling would have allowed mifepristone to stay on the market, in some form.
For days before the supreme court issued its ruling keeping the drug available, abortion providers, hospitals, drugmakers and most importantly, American women, were left holding their breath, uncertain about whether a safe medication would be legal, or whether it would abruptly become illegal, and inaccessible, because of the whims of a handful of jurists – whom nobody voted for and who possess no medical expertise – because those people want to preserve a gendered social hierarchy that the medication threatens. That this threat did not come to fruition, at least not this time, is no consolation. It is unacceptable, and unbecoming the dignity of citizenship, that American women are threatened this way at all.
