Did Dobbs Return Abortion to the States and the People? LOLRoundup
tags: abortion, legal history, Federalism, reproductive freedom
Leah Litman teaches law at the University of Michigan Law School.
Just shy of the one-year anniversary of the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which overruled Roe v. Wade, Judge Matthew Kacsmaryk took the anti-abortion movement one step further: toward a nationwide ban on the current protocol for medication abortion, which accounts for more than 50 percent of abortions in the United States. For those familiar with Kacsymaryk and his decisions, the opinion purporting to nullify the Food and Drug Administration’s approval of mifepristone is not surprising. But that doesn’t make the most recent opinion any less appalling.
There are several ways the opinion is lawless, as Mark Stern has already pointed out. Start with the tone. Footnote 1 of the opinion announces that it is “unscientific” to use the term fetus, and so the great scientist (or judge—it’s hard to keep track) Matthew Kacsmaryk prefers the phrases “unborn child” or “unborn human.” (He cites a philosopher and political scientist for backup.) Footnote 2 of the opinion then recycles personal jet–flying, superyacht-riding world traveler Clarence Thomas’ efforts to falsely equate support for abortion rights with eugenics.
Further, the opinion hints that Kacsymaryk is not content to simply ban this specific medication: Elsewhere in the opinion, he notes “parenthetically” that his legal analysis of the equities in the mifepristone case “also arguably applies to the unborn humans extinguished by mifepristone.” This is just one of the judge’s less than subtle references to the theory of fetal personhood—the idea that fetuses are persons who are entitled to protection under the Constitution. That theory would require abortion to be prohibited nationwide; the analysis ignores the real burden on the people carrying the fetuses. Elsewhere, the judge describes pregnancy as “a normal physiological state” and “natural process” that “most women experience.” (It’s unclear if this understanding of how people become pregnant and then birth a human, in which nothing ever goes wrong and everyone is smiling, is a consequence of the state of sex education in Florida and Texas, which is where Kacsmaryk was born and went to college, respectively.)
The opinion makes clear that any nationwide medication abortion ban is not about women’s safety. One of the reasons the judge gave for invalidating the FDA’s approval of mifepristone is the idea that the 1873 Comstock Act makes it a federal crime to mail medication abortion. The Comstock Act is a Victorian-era law named for a vice crusader who took aim at conduct he deemed licentious. (No sex without pregnancy, you hussies!)
It’s not really about the well-being of women, or the general will of the people of the United States at all. None of the recent anti-abortion opinions are. Kacsmaryk’s decision is yet another reminder of the lies undergirding the Supreme Court’s opinion overruling Roe. It’s hard to know whether it was malevolence or incompetence that led Justice Alito to criticize the Supreme Court’s prior decisions protecting the right to abortion on the ground that the decisions “short-circuited the democratic process” and “wrongly removed an issue from the people and the democratic process.” The fact is that Roe and Casey preserved considerable space for states to adopt different policies on abortion. And the irony is that Alito’s critiques of Roe and Casey would, in fact, be more accurately applied to Kacsmaryk short-circuiting a federal agency’s scientific determination that medication abortion is safe. It’s Kacsmaryk who is undemocratically invalidating the preferences of the millions of Americans who want medication abortion (and abortion generally) to be safe and accessible.
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