Pro-abortion rights and anti-abortion activists rally near the US Supreme Court in Washington, DC, on January 22, 2023. | Celal Gunes/Anadolu Agency via Getty Images
The federal courts are dominated by Republicans, so the appeals process could be rough.
If you’ve followed the fight over where and whether abortion should remain legal in the United States, you’ve probably heard the name “Matthew Kacsmaryk.”
Kacsmaryk is a former lawyer for a religious right law firm, who was appointed by former President Donald Trump to a federal court in Texas. He is widely expected to issue a decision ordering the Food and Drug Administration to withdraw its approval of mifepristone, a medication used in more than half of all abortions within the United States.
The Trump judge held a hearing on Wednesday to hear arguments in a case seeking to remove the widely used drug from the US marketplace, and a Washington Post reporter at the hearing says that he “appeared to seriously entertain claims that mifepristone is unsafe.” That won’t surprise anyone familiar with this judge’s record of partisan rulings.
Make no mistake, there is no legal basis whatsoever for a federal judge to endorse a lawsuit trying to ban this medication, which has been lawful in the United States since 2000.
But if Kacsmaryk rules as he is expected to rule in this lawsuit, Alliance for Hippocratic Medicine v. FDA, that 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 process seeking to temporarily block Kacsmaryk’s order, and then a much more drawn-out process seeking to permanently reverse his decision.
If the federal courts could be trusted to apply the law in a fair and non-partisan manner, even when hot-button issues like abortion are at stake, then we could expect a higher court to step in almost immediately to quash a decision seeking to ban mifepristone. As attorney Adam Unikowsky, a former law clerk to Justice Antonin Scalia, writes in a scathing prebuttal of Kacsmaryk’s expected decision, “if the subject matter of this case were anything other than abortion, the plaintiffs would have no chance of succeeding in the Supreme Court.”
But in these courts … well, buckle up, because it’s not entirely clear where this ride ends.
The fight to swiftly block Kacsmaryk’s expected decision, briefly explained
In the event that Kacsmaryk issues an order seeking to remove mifepristone from the market, the Justice Department should be expected to ask an appeals court to temporarily block that order as fast as it can. This is ordinarily the first step the government takes when a judge imposes a nationwide injunction upon it.
Realistically, the DOJ will probably need at least several days to review Kacsmaryk’s opinion, to consult with other federal agencies that are impacted by that decision, and to draft a motion seeking a stay of Kacsmaryk’s decision. But, in a case as important as this one, it is likely that the Justice Department will move as fast as it reasonably can to invoke the authority of a higher court.
Federal appellate courts are divided into 13 different circuits, most of which have jurisdiction over appeals from federal trial courts in a handful of states. Appeals arising out of Texas are typically 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 last year or so, the Fifth Circuit declared an entire federal agency unconstitutional. It permitted Texas Republicans to effectively seize control of content moderation at social media sites like Twitter, Facebook, and YouTube. And it even tried to override the US Navy’s decisions about which military personnel are fit for deployment.
Simply put, this court is not where you want to be if you are trying to block a trial judge’s decision restricting abortion.
That said, it is possible to draw a reasonable panel of judges in the Fifth Circuit. Typically, federal appeals courts hear cases in three-judge panels, randomly selected from among the court’s judges. Four of the Fifth Circuit’s 16 active judges were appointed by Democrats, and some of the Court’s older Republican appointees are more moderate than the newer crop appointed by Trump. So it is still possible that the Fifth Circuit will grant the DOJ’s request to temporarily block Kacsmaryk’s order.
Should the Fifth Circuit deny this request, however, the Justice Department’s next move is to ask the Supreme Court to block Kacsmaryk’s order by invoking the Supreme Court’s enigmatic “shadow docket.”
The shadow docket is a mix of emergency motions and other matters that the Court decides on an expedited basis, often without full briefing or oral argument. Although most shadow docket orders are brief and say little more than whether the Court has decided to block a lower court decision or not, the Court occasionally hands down important precedent-setting decisions on its shadow docket. Its shadow docket decision in Roman Catholic Diocese of Brooklyn v. Cuomo (2020) revolutionized the law governing when people with religious objections to a law may violate it.
Unfortunately, the shadow docket has become a politicized area of the Court’s work. When Trump was in the White House, the justices frequently blocked lower court decisions within days or a few weeks of the Trump Justice Department’s request asking them to do so. Under Democratic President Joe Biden, by contrast, the justices’ ordinary practice has been to reject such requests — even in cases where the Court ultimately concludes, months later, that the lower court decision was wrong.
That said, the Court did intervene on the Biden administration’s behalf in at least one truly egregious case. In Austin v. U.S. Navy SEALs 1-26 (2022), the Court largely halted the decision ordering the Navy to deploy servicemembers that the military deemed unfit for such service. As Justice Brett Kavanaugh wrote in a brief concurring opinion, the lower court in the Navy SEALs case “in effect inserted itself into the Navy’s chain of command, overriding military commanders’ professional military judgments.”
A decision ordering the FDA to withdraw its approval of mifepristone would be no less egregious than the lower court’s action in Navy SEALs. Among other things, it would effectively strip the FDA — an agency made up of scientists with considerable expertise in drug efficacy and safety — of its ability to definitively rule on which medicines should be available in the United States, making the judiciary the final word on such decisions.
That’s an extraordinary threat to public health. And one that five justices may have the good sense to avoid.
If the courts do not swiftly block Kacsmaryk’s decision, can anything else be done?
Regardless of 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 need to determine whether to reverse Kacsmaryk and permanently restore the FDA’s authority to determine which medicines should be available.
This process, however, will move very slowly. 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 most likely take just as much time to prepare for an oral argument. Then, after that argument takes place, the Court could spend months pondering the case before a final decision is released.
And then, whichever side loses is likely to seek review in the Supreme Court — which will require its own time-consuming process of briefing, oral arguments, and deliberation if it agrees to hear the case (which it almost certainly will if the Fifth Circuit does not reverse Kacsmaryk).
To give you a sense of how long this process could take, in August of 2021, Kacsmaryk handed down an unlawful order requiring the Biden administration to reinstate a Trump-era border policy known as “Remain in Mexico.” The Supreme Court rejected the Biden administration’s request to block this order on the Court’s shadow docket, but it did eventually reverse Kacsmaryk — 10 months later at the end of June 2022.
Realistically, in other words, if the Justice Department cannot obtain emergency relief from either the Fifth Circuit or the Supreme Court, Kacsmaryk’s unlawful order attacking mifepristone could be in effect for months, if not longer.
But will the Biden administration actually win this case after this lengthy process plays out?
The answer is unclear.
There is no plausible legal argument that could justify a federal court decision requiring the FDA to unapprove mifepristone. To list just a few reasons why, the plaintiffs in this lawsuit, Alliance for Hippocratic Medicine v. FDA, waited too long to bring their suit — the statute of limitations to challenge the FDA’s approval of a drug is six years. Kacsmaryk also does not have jurisdiction over this lawsuit. And, as Unikowsky writes in his prebuttal of Kacsmaryk’s expected decision, “no statute exists that the FDA could possibly have violated” when it approved mifepristone.
But five of the current justices have shown an extraordinary willingness to bend the law in order to restrict access to abortion.
Specifically, the Court’s decision in Whole Woman’s Health v. Jackson (2021), which was decided before the Court overruled Roe v. Wade, held that states can effectively immunize an anti-abortion law from federal judicial review if the law can only be enforced by private bounty hunters, and not by state employees. Indeed, the Court’s reasoning in Jackson was so sweeping that it could effectively allow a state to neutralize any constitutional right using this same tactic.
That said, in Dobbs v. Jackson Women’s Health Organization (2022), the decision overruling Roe, the Court did claim that there were limits to its efforts to restrict abortion rights. Justice Samuel Alito’s majority opinion declared that “it is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” In a concurring opinion, Kavanaugh added that his Court “must scrupulously adhere to the Constitution’s neutral position on the issue of abortion.”
We are likely to find out in the coming months, in other words, whether we can trust the justices to draw the line where they said they would draw it in Dobbs. Or whether the judiciary will decide for all of us — regardless of whether we live in red states or blue states — if medication abortion is legal.