On Friday, federal Judge Matthew Kacsmaryk issued a ruling revoking the U.S. Food and Drug Administration’s approval of mifepristone, an abortion drug that has been approved since 2000, starting this Friday. Horrifying? Definitely. Yet within hours, Judge Thomas Rice of Washington state issued a separate, contradictory ruling ordering the FDA to maintain abortion pill access, and the Department of Justice quickly challenged the Texas case.
So abortion access has been thrown into judicial chaos. But how is this all expected to shake out?
First, the Texas case is now in the Fifth Circuit Court of Appeals, a notoriously conservative court. Remember, this is the same appellate court that Dobbs—the case that ended Roe v. Wade—came through. Currently, we’re waiting to see what three-judge panel the case will draw. Among the options is the Trump-appointed James Ho, who has called abortion a “moral tragedy.”
On Monday, the court requested responses from the FDA and the manufacturer of Mifeprex, a brand name of mifepristone, “on or before April 11, 2023 by midnight.” So, we should expect arguments to be heard and rulings to be made quickly. The court could OK Kacsmaryk’s nationwide ban on the drug’s approval or it could essentially take back his ruling and say he overstepped. Either is possible! (The court could slice the decision any number of ways, but these are the two most straightforward possibilities.)
In the meantime, the DOJ has filed a motion with the U.S. District Court for the Eastern District of Washington asking for clarification on Rice’s ruling. “The Court did not address the interaction between the two orders, presumably because they were issued less than 20 minutes apart,” DOJ’s lawyers wrote. Essentially, DOJ wants to know if Rice’s order (that only applies to the FDA’s drug approval in 17 states instead of the entire nation, like Kacsmaryk’s ruling) should or should not supersede the Texas case order due to the “significant tension” between the two rulings.
The Washington case may seem like a side-show the the grim situation in the Southeast, but we can’t dismiss it outright. These two cases are contradictory by design. An anti-abortion group specifically incorporated and filed its suit in Amarillo in an effort to make sure its lawsuit was heard by Kacsmaryk, an extreme anti-abortion judge. The Washington lawsuit, by contrast, was filed by state attorneys generals and similar state offices to keep mifepristone on the market.
Because of the conflicting nature of those rulings, the decision will end up at the Supreme Court, where there are a few more options. It could get decided on the “shadow docket,” which is just a hellish way the nation’s highest court gets around making decisions in public. (The decisions are usually unsigned and don’t have public oral arguments.) Or, if the justices have any sense, it will get calendared for oral arguments quickly.
Whether the case is decided on the shadow docket or put on the calendar, the Supreme Court could still decide to not let the Texas ruling go into effect by Friday. Even worse, it could choose to allow his ruling to become the status quo. (So far no one is challenging Rice’s ruling at this time, but things are changing quickly every day.) There’s honestly no predicting what exactly would be in a SCOTUS order regarding Kacsmaryk’s or the appellate court’s rulings.
To be completely bleak: The Supreme Court let Texas’ S.B. 8, a bounty hunter law combined with a six-week abortion ban, go into effect almost a year before Roe was overturned. It effectively ended abortion access in Texas. So I’m not holding my breath for any support there, despite the lawlessness and clear activism with which Kacsmaryk entered his ruling last week.