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Dobbs will enable the worst judge in America to ban the abortion pill nationwide


One thing about Alito’s relentlessly sneering tone in Dobbs did was to make clear that judicial modesty had nothing to do with the Court’s ruling. One of his particularly lawless sycophants on the U.S. District Court is about to prove it:

When the Supreme Court overturned Roe v. Wade in June, it promised to “return the issue of abortion to the people’s elected representatives.” In virtually every instance in which it’s been returned to the people, which has mostly happened by ballot initiative and referendum, the people have acted to protect reproductive rights. Perhaps that explains why less than a year after the fall of Roe, conservative activists are trying to put the issue of abortion access into the hands of a single man for whom no one ever voted: a federal judge in Texas named Matthew Kacsmaryk. In the coming weeks, there is a very real possibility that Kacsmaryk will single-handedly outlaw medication abortion in all 50 states, massively disrupting access to reproductive health care across the entire country. Worse, there is a substantial likelihood that higher courts—including the Supreme Court—will let him get away with it.

Let’s be clear that the legal battle over medication abortion became inevitable the moment Roe fell. Over the past 50 years, reproductive health care has undergone a dramatic shift: A majority of American patients now terminate their pregnancies with pills rather than by undergoing a procedure at a clinic. This makes good sense, as medication abortions are 18 times safer than childbirth, very reliable, and easy to access. In the 23 years since the FDA first approved the “abortion pill,” the agency has slowly loosened restrictions on prescriptions (though regulations remain irrationally stringent for the minimal risks of these pills). Meanwhile, a booming gray market for the medication has sprung up online following the end of Roe. Today, virtually anyone anywhere in the United States can order pills to their door, legally or otherwise. This infuriates anti-abortion activists who wanted to see this issue settled with the clinic closures and vigilante laws that followed S.B. 8 and Dobbs.

But these activists think they have a solution to the pill problem: ban mifepristone, the first drug taken in the two-drug medication abortion protocol approved by the FDA, which ends the pregnancy. Rather than work through their elected representatives or popular votes, they are attempting to do this via a lawsuit seeking a nationwide injunction. They’re represented by the far-right Alliance Defending Freedom; Erin Morrow Hawley, wife of GOP Sen. Josh Hawley, is a lead attorney.

The suit was filed in the remote Amarillo division of the Northern District of Texas. No, there’s no specific connection between Amarillo and abortion pills. The plaintiffs only filed there because they were guaranteed to draw a single judge: Kacsmaryk, whom Donald Trump placed on the bench in 2019. Before donning his robe, Kacsmaryk served as deputy general counsel at the far-right First Liberty Institute, where he fought LGBTQ equality, abortion, and contraception. (He once said that being transgender is a “delusion” and scorned “secular libertines” who sacrifice children to their “erotic desires.”) Since his confirmation, he has gained a reputation as perhaps the most lawless jurist in the country.

If that sounds like an overstatement—and to be sure, the competition is stiff—consider just a portion of his record: In less than three years, Kacsmaryk has seized control over border policy, repeatedly defied the Supreme Court’s decision protecting LGBTQ employees, and restricted minors’ access to birth control. It was probably inevitable that anti-abortion crusaders would shop their case to him.

As Lithwick and Stern go on to explain, to call the lawsuit “wholly without merit” would be too charitable. But it doesn’t matter — with Kacsmaryk and the 5th Circuit involved the merits are beside the point. And the smart money is on Kavanaugh’s concurrence about how the Court must remain Scrupulously Neutral on the question of abortion is going to be revealed as a born bullshitter’s most pernicious bullshit fairly quickly.

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