If you’ve followed the battle over where and whether abortion should remain legal in the United States, you’ve probably heard the name “Matthew Kaczmarik.”
Kacsmaryk is a former attorney at a religious rights law firm who was appointed by former President Donald Trump to a federal court in Texas. He is expected to issue a ruling ordering the Food and Drug Administration to withdraw its approval of mifepristone, a drug used in more than half of all abortions in the United States.
Trump’s judge held a hearing Wednesday to hear arguments in a case to remove the widely used drug from the U.S. market, and a Washington Post reporter at the hearing said he “appears to seriously entertain claims that mifepristone is unsafe.” This will not surprise anyone familiar with this judge’s record of biased rulings.
Make no mistake, there is no legal basis for a federal judge to uphold a lawsuit trying to ban this drug, which has been legal in the United States since 2000.
But if Kaczmarik rules as he is expected to in this lawsuit, Alliance for Hippocratic Medicine v. FDAwhich will immediately test whether the rule of law still exists in a judiciary 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 aimed at temporarily blocking Kacsmaryk’s order, and then a much longer one aimed at finally overturning his decision.
If the federal courts can be trusted to apply the law fairly and impartially, even when hot-button issues like abortion are at stake, then we might expect a higher court to step in almost immediately to overturn a decision it wants to withhold mifepristone. As attorney Adam Unikowski, a former law clerk to Justice Antonin Scalia, wrote in a scathing op-ed before Kaczmarik’s expected decision, “if the subject matter of this case had been anything other than abortion, the plaintiffs would have had no chance of success at the Supreme Court.”
But in these courts … well, buckle up, because it’s not quite clear where this ride ends.
The Struggle to Quickly Block Kacsmaryk’s Expected Decision Briefly Explained
In the event that Kacsmaryk issues an order removing mifepristone from the market, the Justice Department should be expected to ask the appeals court to temporarily block that order as quickly as possible. This is usually the first step a government takes when a judge imposes a national ban on it.
Realistically, DOJ will likely need at least a few days to review Kacsmaryk’s opinion, consult with other federal agencies that are affected by this decision, and draft a motion to stay Kacsmaryk’s decision. But in a case as important as this one, the Justice Department is likely to move as quickly as possible to invoke the authority of a higher court.
The federal courts of appeals are divided into 13 different circuits, most of which have jurisdiction over appeals from federal courts in several states. Appeals arising from Texas are usually heard by the United States Court of Appeals for the Fifth Circuit, which is probably the most right-wing appeals court in the entire federal system.
In the past year or so, the Fifth Circuit has declared an entire federal agency unconstitutional. This allowed Texas Republicans to effectively control the moderation of content on social media sites like Twitter, Facebook and YouTube. And it even tried to override the US Navy’s decisions about which military personnel are deployable.
Simply put, this court is not the place you want to be if you’re trying to block a judge’s ruling restricting abortion.
However, it is possible to assemble a reasonable bench in the Fifth Circuit. Typically, federal appeals courts hear cases in panels of three judges randomly selected from among the court’s judges. Four of the Fifth Circuit’s 16 sitting judges are Democratic appointees, and some of the court’s older Republicans are more moderate than the newer crop of Trump appointees. So it’s still possible the Fifth Circuit will grant the DOJ’s request to temporarily block Kacsmaryk’s order.
If the Fifth Circuit rejects that request, however, the Justice Department’s next move is to ask the Supreme Court to block Kacsmaryk’s order, citing the Supreme Court’s enigmatic “shadow docket.”
A shadow hearing is a combination of emergency motions and other matters that the Court decides quickly, often without full briefing or oral argument. Although most shadow case orders are brief and say little more than whether or not the Court decided to block a lower court decision, the Court sometimes issues important precedent-setting decisions in its shadow cases. His decision in the shadow Roman Catholic Diocese of Brooklyn v. Cuomo (2020) revolutionized the law governing when people with religious objections to a law could violate it.
Unfortunately, the shadow case has become a politicized area of the court’s work. When Trump was in the White House, judges often blocked lower court decisions within days or weeks of Trump’s Justice Department asking them to do so. By contrast, under Democratic President Joe Biden, it has been common practice for judges to reject such requests — even in cases where the Court ultimately concluded, months later, that the lower court’s decision was wrong.
However, the Court has intervened on behalf of the Biden administration in at least one truly egregious case. in Austin v US Navy SEALs 1-26 (2022), the Court largely stayed a decision ordering the Navy to deploy servicemen the military deemed unfit for such service. As Justice Brett Cavanaugh wrote in a brief concurring opinion, the lower court in Sea seals case “virtually crept into the Navy’s chain of command, overriding the professional military judgments of military commanders.”
A decision ordering the FDA to withdraw its approval of mifepristone would be no less harsh than the lower court’s action in Sea seals. Among other things, it would effectively strip the FDA—an agency made up of scientists with significant expertise in drug efficacy and safety—of its ability to ultimately rule on which drugs should be available in the United States, leaving it up to the judicial system the last word such decisions.
This is an extreme threat to public health. And one that five justices might be wise to avoid.
If the courts don’t quickly block Kacsmaryk’s decision, can anything else be done?
Whether the Fifth Circuit or the Supreme Court grants emergency relief to the Justice Department, blocking Kacsmaryk’s order while the case is fully litigated on appeal, at least one appeals court will have to determine whether to overturn Kacsmaryk and permanently restore the FDA’s authority to determine which drugs should be available.
However, this process will be very slow. Each side will likely need weeks to prepare briefs for the Fifth Circuit, and the panel of Fifth Circuit judges assigned to the case will likely take just as long to prepare for oral argument. Then, once that argument has taken place, the Court may spend months considering the case before making a final decision.
And then whichever side loses is likely to seek review at the Supreme Court — which will require its own time-consuming process of briefing, oral argument and deliberation if it agrees to hear the case (which it almost certainly will if the Fifth Circuit does not turn Kacsmaryk).
To give you an idea of how long this process could take, in August 2021, Kacsmaryk issued an illegal order requiring the Biden administration to reinstate the Trump-era border policy known as “Stay in Mexico.” The Supreme Court denied the Biden administration’s request to block that order in the Court’s shadow case, but ultimately overruled Kacsmaryk — 10 months later, in late June 2022.
Realistically, in other words, if the DOJ can’t get emergency relief from either the Fifth Circuit or the Supreme Court, Kacsmaryk’s illegal order attacking mifepristone could be in place for months, if not longer.
But will the Biden administration actually win this case after this long trial plays out?
The answer is unclear.
There is no plausible legal argument that could justify a federal court order requiring the FDA to revoke mifepristone’s approval. To list just a few reasons why, the plaintiffs in this case, Alliance for Hippocratic Medicine v. FDA, waited too long to file their lawsuit — the statute of limitations for challenging FDA approval of a drug is six years. Kacsmaryk also lacks jurisdiction over this claim. And, as Unikowsky wrote in his preliminary assessment of Kacsmaryk’s expected decision, “there is no law that the FDA could have broken” when it approved mifepristone.
But five of the current justices have shown an extraordinary willingness to bend the law to limit access to abortion.
More specifically, the court’s decision in Whole Woman’s Health v. Jackson (2021), which was decided before the Court was overruled Roe v. Wade, held that states can effectively immunize an anti-abortion law from federal judicial review if the law can be enforced only by private bounty hunters and not by state officials. In fact, the reasoning of the Court in Jackson was so comprehensive that it could effectively allow a state to neutralize any constitutional right using the same tactic.
That said, in Dobbs v. Jackson Women’s Health Org (2022), decision reversed Rowe, the Court did argue that there were limits to its efforts to limit abortion rights. The majority of Justice Samuel Alito declared that “it is time to listen to the Constitution and return the issue of abortion to the elected representatives of the people.” In a concurring opinion, Kavanaugh added that his court “must strictly adhere to the Constitution’s neutral position on the issue of abortion.”
We’ll likely find out in the coming months, in other words, whether we can trust the judges to draw the line where they said they would. Dobbs. Or whether the court system will decide for all of us — whether we live in red or blue states — whether medical abortion is legal.