So much for Republicans believing in 'states' rights'

11 April 2023

A federal judge in Amarillo, Texas, apparently thinks he can second-guess doctors, roll back history and make choices for pregnant Americans. I don’t know if I’m surprised. After all, this is Amarillo. It’s the asshole of America.

I’m talking about Judge Mathew Kacsmaryk, of the US District Court for the Northern District of Texas, who issued a ruling late Friday placing a hold on the Food and Drug Administration’s approval of mifepristone, commonly known as the abortion pill. Another federal judge put a hold on his hold, in effect. The US Department of Justice is appealing the first judge’s ruling. All of this is a tee-up for a Supreme Court decision on mifepristone’s future.

What I am surprised by, maybe just a little, is the short-sightedness of this country’s project in right-wing politics. When federal law stood on the side of pregnant Americans – when Roe was the law of the land – authoritarians were very insistent on states being sovereign nations unto themselves. They treated federal law enforcement as something akin to invasion.

Now that Roe has been felled, those decades of fuss over the sovereignty of the states are melted into the air. Matter of fact, with antiabortion politics having the advantage nationally, there’s new interest among those involved in right-wing politics in projecting the sovereignty of some states over the sovereignty of others. Some states had been more equal than the rest.

I’m not surprised by hypocrisy. As I have argued, over and over, hypocrisy is the rule of rightwing politics, never the exception. What I’m surprised by, again, is the narrowness of their view. There seems to be a presumption in right-wing politics that liberal states won’t exercise their own state’s rights.

But I guess I shouldn’t be surprised by that either. The psychology of rightwing politics is the psychology of bullies the world over. It won’t act if there’s a risk of consequences. It will act if there’s believed to be no such risk. Actions have reactions, but rightwing politics gets so power-drunk that it won’t know it until its nose is bloodied – and maybe not even then.

The thinking of the Judge Kacsmaryks of America is this: nixing the FDA’s approval of mifepristone will block access to the drug. If that happened, it would be, in effect, a national ban on abortion without going through the impossible task of actually banning it by way of congressional legislation.

This is a frightening possibility made more frightening by the reality of a rightwing supermajority on a Supreme Court that’s been compromised by its elder member, Clarence Thomas, being schmoozed for decades by an antiabortionist billionaire whom Thomas calls a “close personal friend.” If he’s being influenced without appearing to be influenced, it’s reasonable to suspect other members of the supermajority are, too. Altogether, this can feel less like the rule of the people and more like the rule of the justices.

Fear of judicial tyranny is understandable but it wrongly presumes something. It’s the same thing rightwing politics presumes: that there won’t be consequences. Actions have reactions, and in a nation like ours, in which states enact most of the laws that citizens are subject to, those reactions will almost certainly take the form of state laws passed to serve residents of those states. In the context of antiabortion politics, such state laws would likely maintain access to mifepristone, the Supreme Court be damned.

Pay attention to what attorneys general in pro-abortion states are saying about Judge Kacsmaryk’s ruling. Here in Connecticut, Attorney General William Tong said, after reading it, that “you just are left with the feeling and understanding that this is just total bullshit, and [it] just reflects this ongoing, deep-seated, abiding, pervasive, pernicious misogyny in our law.”

He added: “It is the law of the state of Connecticut today, tomorrow and as long as we’re in this fight that mifepristone and medication abortion is, in Connecticut, legal, safe, effective and available. Period. Full stop.”

I’m no soothsayer, but it’s not hard to imagine, if the Supreme Court were to override two decades of FDA approval, states like Connecticut doing their best to maintain access to mifepristone. It’s not hard to imagine their health departments continuing to approve of its use. And because that’s not hard to imagine, it’s not hard to imagine something else – for states like Connecticut to become national clearinghouses for pregnant people.

Remember, Judge Kacsmaryk’s ruling is about FDA approval. It’s not about interstate commerce. In January, I wrote about the Biden administration carefully and quietly reacting to the fall of Roe. Justice Department attorneys wrote that delivering mifepristone, even into states that have totally banned abortion, is legal, as long as the sender presumes legal use.

“Those who send abortion drugs to states with strict abortion laws,” wrotePolitico’s Alice Miranda Ollstein and Josh Gerstein, at the time, “won’t ‘typically’ have the degree of knowledge necessary to violate federal law.”

But even if the Supreme Court ruled at some future date that sending mifepristone into states with strict abortion laws does violate federal law, states have been violating federal law since the founding of the republic, the most recent example being legalizing marijuana for recreational use. Laws mean nothing unless enforced, and in the case of mifepristone, that won’t happen unless the US government decides to censor each and every delivery or decides to dispatch an army to occupy capitals of liberal states.

None of this is to say you shouldn’t worry. You should.

What I’m saying is don’t think about the future in terms that are preferable to rightwing politics. Think about the future on your own terms. If you don’t want your state to surrender to judicial tyranny, you have the power.

Use it.

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