A cross post
I ran out of gas. In lieu of my writing to I offer a cross post from Robert Hubbell, a terrific presenter and analyzer of the national legal scene. I subscribe to his Substack blog and look forward to reading his (mostly) every weekday posts. I recommend his writing. It always comes with a dollop of optimism—which I daresay we all can use on most days. What follows is entirely Hubbell’s work.
Keep to the high ground,
Jerry
Dobbs 2.0
March 16, 2023
Robbert B. Hubbell
The US Supreme Court’s ruling in Dobbs v. Jackson Women’s Healthinflicted grievous injury on the rule of law, the legitimacy of the Supreme Court, and liberties guaranteed by the Constitution. In ruling that the Constitution does not protect the right of privacy on which reproductive liberty is based, the Court violated judicial doctrines of interpretation and finality that are the bedrock of “ordered liberty” safeguarded by the third branch of government. But the reactionary majority was willing—even eager—to overthrow those foundational doctrines to codify the dogma of the conservative religious groups that engineered the appointment of the Court’s reactionary majority.
The ruling in Dobbs was wrapped in a lie—that the only issue was where the difficult decisions about reproductive liberty would be made. The reactionary majority claimed that it was returning those decisions to “the people’s representatives.” But that was never the goal of those who plotted the demise of Roe. They want nothing less than the complete, unqualified prohibition of abortion. Indeed, states are beginning to criminalize abortion, putting doctors, hospitals, taxi drivers, families, and friends at risk of charges of homicide and wrongful death for assisting a woman seeking to end a pregnancy.
No, the opponents of reproductive liberty do not want to return those decisions to the “people’s representatives,” they want their extreme religious views to be imposed on all Americans, irrespective of what the “people’s representatives” say about the issue. The religious extremists who sought to overrule Roe now seek to deny all Americans access to a safe, effective drug (mifepristone) approved by the FDA for therapeutic abortions more than two decades ago.
The opponents of reproductive liberty are pursuing their goal by the bad-faith expedient of hand-picking a judge with extreme religious views willing to second-guess the scientific expertise of the FDA and twenty years of experience by doctors and patients in prescribing and using mifepristone.
At the hearing today before the hand-picked federal judge in Texas, it became clear that Judge Kacsmaryk will rely on his religious beliefs to overrule the scientific and medical expertise of the FDA. See NPR, U.S. judge in Texas hears case that could force major abortion pill off market.
During the four-hour hearing on Wednesday, Judge Kacsmaryk revealed his secret agenda in a series of questions directed to the DOJ attorney representing the FDA. In a case that was limited to the issue of whether the FDA followed required regulatory protocols in approving the drug, the following exchange occurred:
Judge Kacsmaryk asked [DOJ attorney] Straus Harris what she made of the fact that Republican attorneys general from more than 20 states — states that have tried to restrict abortion following last summer’s Supreme Court decision overturning Roe v. Wade — filed a brief in the case saying that the wide availability of abortion pills undermines those state restrictions.
Straus Harris responded that this argument is beside the point. She said the FDA approval simply confirmed the drug’s safety and effectiveness and doesn’t require anyone to prescribe it or take it.
“The plaintiffs are the ones who are trying to dictate national policy” with this lawsuit, she said.
The relationship between the FDA’s approval of mifepristone and the ruling in Dobbs was not before Judge Kacsmaryk. But his question about that relationship betrays the fact that Kacsmaryk (and the plaintiffs) see the challenge to mifepristone as Dobbs 2.0—an attempt to deny reproductive liberty to women in the US without regard to what “the people’s representatives” say about the issue. Instead, an extremist minority claims for itself the right to impose its religious doctrine on all Americans.
There is a chance that Kacsmaryk will not accept the plaintiffs’ invitation to become the national arbiter of reproductive choice in America, but I doubt it. He is motivated by religious principles, not fealty to the Constitution—despite the oath he took when he was confirmed.
What do we do in the face of Kacsmaryk’s impending decision? Answer: Everything that we are doing, but with greater urgency, dedication, and commitment. If Kacsmaryk grants this victory to religious extremists, they will be back at his chamber door with new cases carefully crafted to eliminate other constitutional liberties under the guise of religious freedom.
What’s next on the docket of the religious extremists? I hesitate to outline the issues, but they are no secret. In short, if you or your beliefs or lifestyle do not conform to a biblical mythology of “one man and one woman created in the image and likeness of god,” you have no place in the future that Judge Kacsmaryk envisions for a country reborn into Christian nationalism.
I remain confident that we will overcome these challenges. But the biggest challenge of all is convincing people that the threat is real, imminent, and far worse than they imagine. When we next control Congress and the presidency, the first bills should be to reform and expand the Supreme Court. The second set of bills should override state laws that discriminate against American citizens based on their gender or sexual orientation or identity.
And then, finally, at long last, we must guarantee the right of every adult American citizen to vote in every election by mail or in person without artificial impediments imposed by MAGA legislatures. When that happens, we will make great strides toward delivering on the promises of liberty that are explicit and implicit in the Constitution. It cannot happen soon enough.