Amid Chaos, Judicial Silence
Terry H. Schwadron
April 23, 2023
Despite Friday night’s unsigned, non-explanatory order from the Supreme Court to pause the hurtling campaign to outlaw the abortion medication already in use for 23 years, there were some things we could learn about the court’s impenetrable thinking.
First, the conservative majority didn’t have the votes to commit its harshest action to ban mifepristone, one of the two abortion meds in use. The order for a stay, or pause, to allow the Court of Appeals to hear a more complete case means the drug will remain in circulation for now.
The second is that while intention of the earlier, contentious Dobbs decision overturning abortion rights was ostensibly to allow 50 states to decide on individual abortion laws, the movement for a national abortion ban by any means possible remains a live political tripwire. The sheer number of outlandish legal and non-legal reasonings offered by the District Court Judge Matthew Kacsmaryk is remarkable — and basically untouched by this particular set of appeals focused on the sole issue of a hold while the case remains open on appeal.
Third, what we did learn about this Supreme Court order was as the result of a single dissent from anti-abortion Justice Samuel Alito (Clarence Thomas also dissented) whose two-page remarks were dripping in sarcasm and disdain for government altogether. Among his assertions were outright suggestions that the Biden administration would simply ignore a court order that the administration opposes.
What was not addressed, then, were contentions about whether the ad hoc group of conservative doctors and anti-abortion activists who brought the tailor-made suit before an isolated Texas courthouse where an avowed anti-abortion judge would be hearing it even had the legal standing to bring the action. Nor did it address the idea that approvals for mifepristone were being challenged on alternative thinking about clinical testing and science rather than law. Nor did the justices address any idea that throwing out FDA drug approval might trip up government authority, constitutional questions, or the pharmaceutical industry altogether, leaving all medications open to challenge.
This “emergency order” from the court seemed to skip blithely over the kind of impact that these abortion rulings are having on the society at large — as if the ivory tower discussion of legalities is divorced from real world ripples.
Lack of Explanation
These emergency orders — now being called the court’s “shadow docket” — require no explanation from justices. They are usually meant to involve issues like stays or pauses, as in this case, but clearly, they have not been limited to that in the last two years.
In a society both as litigious as we are and as politically divided as we are, for the nation’s top court to take actions without explanation or guidance to understanding just leads to more chaos in cases where there are wide societal ripples.
Indeed, since the Dobbs decision last summer, we’ve seen state legislations horribly mangle different kinds of bills about abortion, only to learn belatedly that they had triggered a whole lot of effects, intended or not, affecting surgeries and health conditions that are not about abortion. Just this weekend, there were reports about the significant drop in OB/GYN residencies for new doctors across the South, directly related to criminal legal uncertainties being enacted for doctors and medical personnel whose non-abortion health decisions may be triggered by these laws.
The idea that a single judge — in this case, a single judge with a long history of activism in anti-abortion affairs — would ban mifepristone nationally on a case of hypothetical damage to the challenging doctors based on a non-established view that the FDA should have held different clinical trials a quarter-century ago is being weird. As Mark Joseph Stern noted in a Slate report, “not a single justice even tried to defend the decision by Kacsmaryk, a Donald Trump appointee whose ruling earlier this month represented a particularly lawless attempt to assert power over the Food and Drug Administration.”
The Dissent
To be fair, the question before the Supreme Court was now only about the stay, not the whole case, but the justices can redefine the question, of course.
In his dissent, Alito argued against a pause in implementing recommendations from the appeals court to disallow mailed medication and to require in-person medical visits — conditions that had existed since 2016 before the lower court decision in Texas. In sarcastic tones, Alito attacked his fellow justices and criticism about abuse of shadow docket powers, asserting that his colleagues were being hypocritical in allowing the pause. Alito attacked Judge Thomas O. Rice in Washington State for issuing a contrary ruling to Kascsmaryk’s an hour later, and the Justice Department for not appealing that ruling immediately.
Alito said “Here, the Government has not dispelled legitimate doubts that it would even obey an unfavorable order in these cases, much less that it would choose to take enforcement actions to which it has strong objections,”
Alito never sought to justify the Kacsmaryk decision which was based on a claim that the challenging doctors might one day treat a patient injured by mifepristone, a totally conjectural future “injury” that may well never happen. To claim that the medication is dangerous, they rejected more than 100 scientific studies proving it’s safe and effective, and instead cited anonymous blog posts from an anti-abortion website.
The original decision also relied on a misreading of something called the Comstock Act that was enacted to keep dangerous substances from being mailed.
Where we stand is this: Despite the contentions of anti-abortion forces, polls and recent elections have supported keeping abortion rights in play — suggesting non-legal avenues for individual decisions on abortion. Yet, anti-abortion legislators are moving quickly and in concert to block state access to health care, and now medications, even interstate travel to abortion-legal states. The Supreme Court has stepped in judicially active ways on this question but is showing that each ruling is sowing more confusion and spawning more appeals.
There has got to be a better way than trying to mandate morality through inexplicable laws that defy science, medicine, and common sense.
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