Why the Judiciary Remains a Threat to Abortion Rights

Less than a year after the Supreme Court overturned Roe v. Wade, right-wing extremist judges once again are leading an assault on the right to a safe and effective abortion. In Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, a right-wing anti-abortion organization sued to remove FDA approval of mifepristone, a drug used in miscarriage treatment and medical abortion. While the case is still pending appeal, it highlights the dangerous strategies conservative organizations, working in lockstep with the judges they’ve helped put into power, are using to further restrict access to abortion. 

The right to bodily autonomy, including the right to a safe and effective abortion, is one of the building blocks of an inclusive, multiracial democracy.

The right to bodily autonomy, including the right to a safe and effective abortion, is one of the building blocks of an inclusive, multiracial democracy

Safe and effective abortions are essential healthcare and allow people to fully participate in our democracy and economy in the ways they choose. Abortion restrictions can have dangerous, and sometimes deadly, consequences for all people who can become pregnant, and they are especially perilous for groups already marginalized in our healthcare and legal systems, including women of color and the LGBTQIA+ community. 

To achieve their desired outcome, the plaintiffs in Alliance used a strategy called “judge shopping,” which involves filing a case in a certain geographic area to guarantee the case is heard by a sympathetic judge. The right has increasingly exploited this procedural loophole; most notably, the state of Texas has filed 29 cases in geographic locations that guarantee being seen before a Republican-appointed judge. In the current case, plaintiffs filed the case in Amarillo, Texas, ensuring it would be heard by Matthew J. Kacsmaryk, a Trump-appointed judge in the Northern District of Texas.  

Kacsmaryk is known for his disturbing views on abortion and LGBT rights, and for producing legally dubious rulings that function to enact a far-right policy agenda from the bench. This case was no exception. In a factually-inaccurate decision that completely ignored the plaintiff’s lack of standing, Kacsmaryk stayed the FDA’s approval of mifepristone—a drug it approved for the first time nearly two decades ago—which would have made manufacturing the drug illegal.  

Luckily, the Supreme Court stayed Kacsmaryk’s ruling pending appeal, meaning that the ruling will not go into effect. While the case continues to be considered by the Fifth Circuit, it’s important to note how widespread and damaging the effects of this ruling could be. Taking mifepristone off the market impacts people all across the country—even those who live in states where abortion is legal. Medication abortions tend to be most effective when people take a regimen of mifepristone and another drug, misoprostol. This regimen is crucial in areas where there are few abortion providers, including rural areas or states hostile to abortion access. According to the Guttmacher Institute, medication abortions account for 54 percent of all abortions in the United States. Mifepristone also remains important for miscarriage treatment. 

 It’s likely that this case and others like it could be decided by the Supreme Court in the future, but for now mifepristone remains on the market. The Supreme Court ruled correctly this time. But this incident was a sobering reminder of the judiciary’s ongoing threat to abortion rights and an inclusive, multiracial democracy. Through judge shopping, anti-abortion advocates already have the blueprint for how to produce lower court rulings in their favor.  

Now more than ever, progressives must take seriously the threat the judiciary poses and work to rebalance the courts to counter an extremist right-wing judicial agenda. 

Now more than ever, progressives must take seriously the threat the judiciary poses and work to rebalance the courts to counter an extremist right-wing judicial agenda.