Dr. Melissa Harris-Perry: It's The Takeaway. I'm Melissa Harris-Perry, thanks for starting your week with us.
Dr. Melissa Harris-Perry: On Friday, the Supreme Court issued a stay on a lower court ruling. The stay ensures that for now the abortion pill, mifepristone, will remain widely available.
Now, mifepristone was first approved as safe and effective for ending pregnancies more than 20 years ago, but earlier this month, US District Judge Matthew Kacsmaryk, who's a federal judge in Texas appointed by former President Donald Trump, suspended the FDA's approval of mifepristone. The US Court of Appeals for the Fifth Circuit challenged part of Kacsmaryk's ruling, leaving mifepristone legal, but making it harder to access.
Friday's decision by the Supreme Court halted those Fifth Circuit Court restrictions and reestablished the status quo, but the decision is temporary. Now, this is the first time the Supreme Court has taken action on abortion since overturning Roe v. Wade last year, but because this was an emergency decision and not a full case, the court did not provide reasoning, noting only that justices Thomas and Alito dissented.
Joining us now is Leah Litman, professor of law at the University of Michigan Law School and co-host of the Crooked Media podcast, Strict Scrutiny. Professor Litman, welcome back to The Takeaway.
Professor Leah Litman: Thanks so much for having me.
Dr. Melissa Harris-Perry: Let's just have a quick reminder on how this challenge to mifepristone started. Who brought this case, the initial case in Texas?
Professor Leah Litman: It was initially brought by a group of doctors that called themselves The Alliance for Hippocratic Medicine. This was a new organization that actually only first incorporated last summer in 2022, and they chose to incorporate in a very specific place, Amarillo, Texas. Amarillo, Texas happens to be the place where Judge Matthew Kacsmaryk is the only judge in a particular division in federal court, so by incorporating there, they knew that case would be heard by Judge Matthew Kacsmaryk.
Dr. Melissa Harris-Perry: It suggests that despite the pretty lofty name, that this is a organization founded for the purpose of challenging mifepristone.
Professor Leah Litman: Yes. That's been their main shtick since they found it. They brought this case and the principal allegation was their members did not want to treat people who experienced any complications from mifepristone. Now, there were some other plaintiffs in the case but the main plaintiff in the case is the organization that's specifically incorporated in this location so that this mifepristone case could be heard by the judge who everybody knows has a long history of opposing LGBTQ equality as well as abortion rights.
Dr. Melissa Harris-Perry: Remind us again about the Fifth Circuit. What is the reputation of that court?
Professor Leah Litman: The Fifth Circuit is an extremely conservative court. The three-judge panel that heard the mifepristone case included two nominees by former President Donald Trump, as well as a nominee by former President Bush. President Trump radically reshaped that court by appointing pretty extreme reactionary ideologues. He was able to do that because of a tradition whereby presidents consult the home state senators about the judges that they appoint to a given court.
When President Trump went to appoint judges in Texas, Senator Ted Cruz and John Cornyn were completely fine appointing judges who were radical ideologues and reactionary judges and were ultimately willing to allow part of this anti-mifepristone ruling go into effect.
Dr. Melissa Harris-Perry: Now, how in the world did SCOTUS end up in this mix so swiftly? Help us again to remember what these kinds of emergency rulings are.
Professor Leah Litman: The case made its way to the Supreme Court on what is known as the court's shadow docket, and that's a phrase that just means any applications to the court outside of a normal course of cases where the court will typically grant a case, hear argument in the case several months later, and then issue a decision several months after that. The shadow docket is for, among other things, requests for emergency relief, and that's what the federal government was seeking here, emergency relief in the form of a stay.
Dr. Melissa Harris-Perry: Were you or other court observers, Supreme Court observers, surprised by this decision?
Professor Leah Litman: I wasn't that surprised by the US Supreme Court's decision for a few reasons. One is the legal claims at issue in the case, ranging from both whether the FDA was correct and had adequate evidence to approve mifepristone and adopt subsequent regulations that it chose to do so, that legal claim was weak but so too were the claims that a federal court even should have heard this case at all.
You add to that the fact that this ruling would have unleashed complete and total chaos on the pharmaceutical industry in addition to women who need access to medication abortion, there was a really unprecedented push by not only doctors but also pharma, penning joint letters as well as filing briefs in the case saying, "Look, if federal courts can just yank a drug off the market that's been in circulation for several decades, that's going to make it impossible for pharmaceutical companies to actually circulate their drugs once they have been approved."
On top of that, this decision garnered swift and immediate condemnation with some people even saying publicly, including both the senator and congressional representatives, that the Biden administration should consider not even abiding by a decision in that case. Coupled all of those things together, the swift public outcry challenging the court's authority with the weakness of the legal claims and the chaos that this ruling would have unleashed didn't make it ultimately that surprising that there weren't five votes to allow some version of this ruling to go into effect.
Dr. Melissa Harris-Perry: This is not the court wringing its hands about its decision about Dobbs and wondering if it did the wrong thing and handing back to the states the ability to regulate what had been a constitutionally recognized right for pregnant people to terminate their pregnancies for five decades. This is about those competing interests of the authority of the courts. Also conservative interests in business, perhaps in pharmaceuticals. I guess I am fascinated if this becomes the fissure point where, for example, Alito and Thomas demonstrate that no for them, their ideological commitment is directly in line with this anti-abortion stance, despite the other chaos that could ensue.
Professor Leah Litman: It was more than a little ironic that the author of the opinion in Dobbs, which overruled Roe versus Wade and professed a commitment to allowing issues of abortion care to be resolved in the Democratic process, was apparently the most eager to allow a federal court ordered ban on the current medication abortion protocol go into effect. Justice Alito wrote the opinion in Dobbs, saying, "This is going to get the federal courts out of the business of abortion. It's just going to be resolved in the political process." Only to, less than a year later, say, "Well, actually, federal courts can effectively order a nationwide ban on a particular abortion procedure."
Given Justice Alito's history of jurisprudence, he is not one to abide by statements or principles in prior cases. He is very ideological and results-driven, and in previous cases, both he and Justice Thomas have been willing to bend over backwards to give conservative litigants as well as before that the Trump administration, basically everything that they asked for on both the shadow docket as well as in other cases. While I wasn't surprised at the ultimate ruling in the case, the fact that the Supreme Court stayed the lower court's decision, I also wasn't surprised that Justice Alito and Justice Thomas said, "Yes, we're basically fine with this."
Dr. Melissa Harris-Perry: Quick break here. We'll be right back with more on the legal battle over mifepristone access right after this. We're back with University of Michigan Law Professor Leah Litman. Now, it's going to go back to Fifth Circuit. Is that right? There will be more decision-making there?
Professor Leah Litman: Yes. The appeals process is still ongoing. This was only about whether there would be a stay during the appeal. The US Court of Appeals for the Fifth Circuit will hear oral argument in a few weeks in the case reviewing, again, in the normal appeals process, the district court's order, and then after the argument, at some point the Fifth Circuit will issue a decision, and then whoever loses could ask the US Supreme Court to review the case. No matter what the Fifth Circuit decides here, that decision is not going to go into effect until the US Supreme Court has the opportunity to review it. Because the US Supreme Court wrote the stay to last until after the Fifth Circuit's decision in the case.
Dr. Melissa Harris-Perry: What does that mean today for people who may need to access mifepristone?
Leah Litman: People are, unfortunately, left to the patchwork of state laws regarding access to abortion, including medication abortion. One of the most pernicious things about Judge Kacsmaryk’s ruling, as well as the Fifth Circuit's, is it had the potential to not only clamp down on abortion access in more conservative-leaning states with restrictive abortion laws but also any state in the country given that if you impose restrictions on mifepristone, it can't be used anywhere.
What this decision does is it basically restores access to mifepristone if you happen to live in a state where you can access mifepristone. Now, of course, people that live in states with restrictive abortion laws can and still will access mifepristone, whether that's by traveling out of state for an initial in-person visit or through telehealth, or through the mail. What it does is basically just revert back to the patchwork of state-by-state laws that determine access to abortion. If you live in a state with less restrictive abortion laws, you can continue to access mifepristone in the way you could previously.
Dr. Melissa Harris-Perry: There's one final wrinkle I want to make sure that we bring in here, and that is the case moving through in Washington State. Can you tell us about that?
Leah Litman: Yes. The Washington State case was a case filed by several attorneys general in Democratic-leaning states. They sued the FDA to challenge the existing restrictions on mifepristone, arguing that those restrictions actually were too restrictive. We don't actually have a decision in the case about whether the restrictions are justified on the basis of evidence or whether the FDA needs to loosen them, but that court did issue an order actually on the same day that Judge Kacsmaryk issued his ruling. The order from the Washington Court said the FDA cannot alter the status quo. That is, it can't impose additional restrictions while the Washington Court figures out whether the existing restrictions are warranted.
Now, the federal government could still appeal that Washington decision. It has not yet done so. There are also a group of Republican-leaning states who want to intervene in the case so that they can challenge the Washington Court's ruling. Thus far, the Washington Court has not permitted them to do so. Basically, we're waiting for a decision in that case about whether the existing restrictions are warranted as well as a possibility that the federal government might appeal that case up the federal courts.
Dr. Melissa Harris-Perry: Leah Litman is professor of law at the University of Michigan Law School and co-host of the Crooked Media Podcast, Strict Scrutiny. Thanks for being here again, Leah.
Leah Litman: Thank you for having me.
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