Federal Judges Explain Things to Me
I did something this semester that I’ve never even considered doing before. I apologized to my students. Not for being late grading their papers or wasting valuable in-class time futzing with technology that it’s perhaps reasonable for them to expect me to handle fluidly. I apologize for that all the time. No, this was more general, more sweeping. I apologized on behalf of my generation, especially my generation of feminists and gay folks, for the mess we seem to have made of things. And I apologized for our great privilege, which we almost never notice: the privilege of having come of age at a time when things seemed to be getting better, at least on some fronts; a time when the forces arrayed against us seemed like they might be permanently beatable.
I was in grade school for Roe, barely politically conscious for the Hyde Amendment, befuddled by Bowers, out and proud in time for Lawrence and Obergefell. Even though every second person I went to college with was headed into investment banking and ready for their close-ups with The Wall Street Journal, I had the sense—another privilege, I see it now—that the right-wing victories were temporary, that their flame would die back someday soon and a wind of change would carry its noxious gray smoke away. That soon enough, if not today, a president who redeemed the Klan killing of Chaney, Goodman, and Schwerner, as Ronald Reagan did in kicking off his campaign in Neshoba County, Mississippi, where the civil rights activists were killed, would receive his just rebuke.
What, in the age of federal Judge Matthew Kacsmaryk, of Dobbs and Trump, rampant anti-trans lawmaking, and the recrudescence, for fuck’s sake, of anti-gay and anti-queer “groomer” panic, can someone like me in good conscience say to the class of ’23?
To be clear, as of Easter weekend, Judge Kacsmaryk’s ruling, enjoining the Food and Drug Administration’s 23-year-old approval of the medication-abortion drug mifepristone, has not yet gone into effect and will not for at least seven days. The Biden administration will immediately appeal it to the Fifth Circuit federal appeals court—which Charles Pierce, writing for Esquire magazine, called “the blown fuse of American jurisprudence.” A different federal judge, sitting in Eastern Washington, responded to the pleas of blue-state attorneys general by ordering that the legal status of mifepristone not change in the 17 states, plus the District of Columbia, that were parties to the suit. A higher court will have to untangle these contradictory rulings.
But this is not a good situation. Somebody I don’t follow on Twitter, but whose thoughts meandered my way, insisted that the U.S. Supreme Court would ultimately vote 6-3 against Kacsmaryk and in favor of the continued availability of mifepristone and the other drug typically utilized in the medication abortion protocol, misoprostol. I don’t believe it. Judge Kacsmaryk is just a slightly more rough-around-the-edges version of any judge in the current conservative supermajority on the nation’s highest court. In fact, he sounds no less partisan, no less like he’s reading from a far-right activist anti-feminist and anti-gender-nonconforming playbook, than Justice Alito in the Dobbs opinion or Justice Thomas in his Dobbs concurrence.
The Texas ruling on mifepristone is incoherent. Judge Kacsmaryk jumps back and forth between arguments for doctors’ rights—mostly, their right not to suffer “pressure and stress” from caring for patients who suffer the (mostly made-up) negative consequences of medication abortion—and for the well-being of hypothetical abortion seekers, who are not asking the courts to protect them out of access to a drug regimen that has been proven safe. He relies implicitly on a belief that medication abortion “starves [an] unborn human”—his preferred language in place of the word, “fetus,” which he disdains—“to death,” and so it can’t be medicine approved by the FDA.