If you’ve followed the fight about where and whether abortion should remain legal in the United States, you probably are I heard the name “Matthew Kaksmarek”.
Kaksmarek is a former attorney at a religious rights law firm who was appointed to federal court in Texas by former President Donald Trump. It is widely expected to pass a ruling ordering the Food and Drug Administration to withdraw its consent to mifepristoneIt is a drug used in more than half of all abortions in the United States.
A Trump judge held a hearing on Wednesday to hear arguments in a case that seeks to remove the widely used drug from the US market.He seemed to seriously accept the claims that mifepristone is unsafe. This wouldn’t surprise anyone familiar with this Judge’s record of partisan rulings.
Make no mistake, there No legal basis whatsoever for a federal judge to uphold a lawsuit trying to ban the drug, which has been legal in the United States since 2000.
But if Kacsmarek judges as he is expected to judge this suit, Coalition for Hippocratic Medicine v. Food and Drug AdministrationThat would immediately test whether the rule of law still holds in a judicial system dominated by Republican appointees.
Here’s what happens next in the federal court system: There will likely be two parallel appeals processes — a relatively quick one that seeks to temporarily block Kacsmaryk’s order, and then a much longer process that seeks to permanently reverse his decision.
If the federal courts can be trusted to enforce the law in a fair and nonpartisan manner, even when Hot issues such as abortion are at stakeThen we can expect a higher court to intervene almost immediately to overturn a decision seeking to ban mifepristone. As Attorney Adam Unikoski, Former Law Clerk to Judge Antonin Scalia, He writes In a scathing precedent to Kacsmaryk’s expected decision, “If the subject of this case had been anything other than abortion, plaintiffs would have There is no chance of success in the Supreme Court. “
But on these playgrounds … well, buckle up, because it’s not entirely clear where this journey ends.
The fight to obstruct Kacsmaryk’s expected decision quickly, he explained succinctly
In the event that Kacsmaryk issues an order seeking to remove mifepristone from the market, the Department of Justice should be expected to request that the Court of Appeal suspend that order as soon as possible. This is usually the first step the government takes when a judge imposes a nationwide injunction.
Realistically, the DOJ would probably need at least several days to review Kacsmaryk’s opinion, consult with other federal agencies affected by this decision, and craft a motion seeking to halt Kacsmaryk’s decision. But, in an important case like this, the Justice Department will likely move as quickly as it can to invoke the authority of a higher court.
Federal appeals courts are Divided into 13 different circles, and most have jurisdiction over appeals from federal trial courts in a few states. Appeals arising from the state of Texas are usually heard by the United States Court of Appeals for the Fifth Circuit, which may be Most Whig Courts of Appeal in the entire federal system.
In the past year or so, Fifth District I declare an entire federal agency unconstitutional. Effectively allowed the Texas Republicans Control over content modification On social networking sites such as Twitter, Facebook and YouTube. and even Try to bypass US Navy decisions About military personnel suitable for deployment.
Simply put, this court is not where you want to be if you are trying to block a trial judge’s decision to restrict abortion.
However, a reasonable panel of judges is possible in the Fifth Circuit. Federal appeals courts usually hear cases in a panel of three judges, chosen at random from among the court’s judges. Four of the 16 Fifth Circuit justices were appointed by Democrats, and some of the court’s older Republican appointees have been more moderate than The latest crop named Trump. So it’s still possible that the Fifth Circuit could grant the Justice Department’s request to pause Kacsmaryk’s order.
If the Fifth Circuit denies this request, the Department of Justice’s next step is to ask the Supreme Court to block Kacsmaryk’s order by invoking Supreme Court vagueness.”shadow schedule. “
A shadow schedule is a mixture of emergency motions and other matters that the court decides expeditiously, often without full briefing or oral argument. Although most shadow table orders are brief and give little indication of whether or not a court has decided to block a lower court’s decision, the court sometimes makes important decisions to set precedents in its shadow file. shadow file resolution in Roman Catholic Diocese of Brooklyn v. Cuomo (2020) A Revolution in Governing Law When people who have religious objections to a law can break it.
Unfortunately, the shadow table has become a A politicized field for the court’s work. When Trump was in the White House, justices frequently blocked lower court decisions within a few days or weeks of Trump’s Justice Department asking them to do so. Under Democratic President Joe Biden, by contrast, it has been normal practice for justices to deny such motions — even in cases where the court eventually ends up, After many monthsthat the lower court’s decision was wrong.
That said, the court has intervened on behalf of the Biden administration in at least one truly egregious case. in Austin vs. US Navy Seals 1-26 (2022), the Court largely stayed the decision ordering the Navy to deploy military personnel deemed unfit for service by the Army. As Justice Brett Kavanaugh wrote in a terse concurring opinion, the lower court in Naval military units Case “in effect inserted itself up the chain of command of the Navy, bypassing the professional military judgments of military commanders.”
A decision ordering the FDA to withdraw its approval of mifepristone would be no less egregious than a lower court action in Naval military units. Among other things, it would effectively strip the Food and Drug Administration — an agency made up of scientists with significant experience in drug efficacy and safety — of its ability to rule definitively about which drugs should be available in the United States, leaving the judiciary as the last word. in such decisions.
This is an unusual threat to public health. And one that the five judges may have the common sense to avoid.
If the courts do not quickly block Kasmaric’s decision, can anything else be done?
Regardless of whether the Fifth Circuit or the Supreme Court grants emergency relief to the Department of Justice, blocking Kacsmaryk’s order during the full litigation of the case upon appeal, at least one appeals court will need to determine whether to reverse Kacsmaryk and permanently restore the FDA’s authority to determine which drugs It must be available.
This process, however, will move very slowly. Each side will likely need weeks to prepare briefs for the Fifth Circuit, and the Fifth Circuit panel of judges assigned to the case will likely take the same amount of time to prepare for the oral argument. And then, after that argument is done, the court can spend months pondering the case before making a final decision.
And then, whichever side loses will likely seek review in the Supreme Court—which will require a lengthy process of briefing, oral argument, and deliberation if it agrees to hear the case (which it almost certainly would if the Fifth Circuit) does not reflect kacsmaryk).
To give you an idea of how long this process might take, in August 2021, Kacsmaryk issued an illegal order Demand that the Biden administration reinstate the Trump-era border policy known as “Stay in Mexico.” The Supreme Court denied the Biden administration’s request to block this in the court’s shadow schedule, but ultimately overturned Kacsmaryk – 10 months later at the end of June 2022.
Realistically, in other words, if the DOJ can’t get emergency relief from the Fifth Circuit or the Supreme Court, Kacsmaryk’s illegal order to attack mifepristone could be in effect for several months, if not longer.
But will the Biden administration actually win this case after this drawn-out process is over?
The answer is not clear.
There is no reasonable legal argument that could justify a federal court decision requiring the FDA not to approve mifepristone. To list just some of the reasons, the plaintiffs in this lawsuit, Coalition for Hippocratic Medicine v. Food and Drug Administrationwaited too long to file their lawsuit – the statute of limitations for challenging FDA approval of a drug is six years. Kacsmaryk also has no jurisdiction over this lawsuit. As Unikowsky wrote in his previous book about Kacsmaryk’s expected decision, “There is no law the FDA can breakwhen mifepristone was approved.
But five of the sitting justices have shown an unusual willingness to change the law in order to restrict access to abortion.
Specifically, the court’s decision in Whole Women’s Health v. Jackson (2021), which was decided before the court overturned Roe v. WadeAnd that states can effectively Immunize the anti-abortion law from federal judicial review If the law can only be enforced by private bounty hunters, not by state employees. In fact, the reasoning of the court was in Jackson It was so sweeping that it could effectively allow a state to sideline any constitutional right by using the same tactic.
That said, V.I Dobbs v. Jackson Women’s Health (2022), rescinding the decision ruHowever, the court claimed that there were limits to its efforts to restrict abortion rights. The majority opinion of Justice Samuel Alito declared that “it is time to abide by the Constitution and Return the issue of abortion to the elected representatives of the people. In a favorable opinion, Kavanaugh added that his court “must strictly adhere to the Constitution’s neutral position on the question of abortion.”
We will likely find out in the coming months, in other words, whether we can trust the justices to draw the line they said they would. Dobbs. Or whether the judiciary will decide for all of us—regardless of whether we live in red or blue states—if medical abortion is legal.