Click here for an article at Slate.com By Dahlia Lithwick and Mark Joseph Stern entitled "Dobbs was Always just the Beginning," subtitled "A single judge could outlaw the abortion pill nationwide."
Judge-shopping -- the practice of searching for a district where you stand a good chance of having a friendly radical judge who will hear your case -- has led plaintiffs -- anti-abortion medical associations joined by anti-abortion doctors -- to bring a case in the Amarillo Division of the Northern District of Texas, where they will be guaranteed to be heard by a federal judge named Matthew Kacsmaryk, appointed by Donald Trump in 2019.
Over the past 50 years, reproductive health care has undergone a dramatic shift: A majority of American patients now terminate their pregnancies with pills rather than by undergoing a procedure at a clinic. This makes good sense, as medication abortions are 18 times safer than childbirth, very reliable, and easy to access. In the 23 years since the FDA first approved the “abortion pill,” the agency has slowly loosened restrictions on prescriptions (though regulations remain irrationally stringent for the minimal risks of these pills). Meanwhile, a booming gray market for the medication has sprung up online following the end of Roe. Today, virtually anyone anywhere in the United States can order pills to their door, legally or otherwise. This infuriates anti-abortion activists who wanted to see this issue settled with the clinic closures and vigilante laws that followed S.B. 8 and Dobbs.
A two-drug abortion protocol was approved by the FDA in 2000. The lawsuit seeks to roll back FDA approval of one of the two drugs, called mifeprostone. Many legal experts consider the case to be extremely weak, but that doesn't matter if the decision is made by a partisan judge determined to end abortion.
Lower courts have gone rogue in the past, but the likelihood of approval by SCOTUS has always been slim -- until the present 6-3 conservative court. Now there is no guarantee that an antiabortion case will be tossed by the Supremes, no matter how weak the case.
That brings us to the biggest problem of all. We will see more and more of these scandalously frivolous claims succeed precisely because the Supreme Court has changed so much, so quickly. Lower courts are racing to push the limits of law and daring the conservative justices to stop them. It is now obvious to all that five justices will gladly rewrite precedent without any warning or justification in a way that will upend long-settled expectations. That opens the door to a kind of nihilistic and perverse ingenuity that used to be scorned by the third branch.
The very weakness of this litigation—the lack of real standing, the blunderbuss attack on federal agencies, the extraordinary scope of the relief sought—are the seeds that have been planted by this newly constituted Supreme Court supermajority coming to fruition. The conservative justices have already brushed away standing requirements in order to weaken civil rights laws; severely weakened the EPA and the CDC; and let rogue judges seize power from the Biden administration. This conservative supermajority has used the shockwaves of recent reversal of precedent and dismantling of existing tests to lay the tracks for the next shocker.
Overturning Roe was not the terminal point in the decades-long journey to limit reproductive rights; it’s barely even the start. Maybe this is the moment in which we ask ourselves why so many of us are still surprised; why we are still caught off guard when a court arms alleged domestic abusers, or limits access to birth control, or—stay tuned—criminalizes medication abortion everywhere. The crisis here is not just that a federal judge could imminently ban an abortion drug that’s been used safely for 23 years. It’s that the chaos wrought by Dobbs means anything is possible, and no one—not even in the deepest blue states—can go to bed with any certainty that they will wake up with their rights intact. That is the legacy of today’s Supreme Court: No one can ever really know what new nightmares tomorrow will bring.
Donald Trump and Mitch McConnell have poisoned the American judicial system for decades to come.
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