Analysis: Kavanaugh and Alito said judges would be out of the abortion equation. That's not the case

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When the Supreme Court reversed federal abortion rights last June, Justice Samuel Alito’s majority opinion stressed that “It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives.”

Justice Brett Kavanaugh went further, separately emphasizing that the controversy would now be one for state officials and that judges would no longer undertake the “difficult moral and policy questions” related to when a woman is allowed to end a pregnancy.

But the drama Wednesday in a Texas courtroom over medication abortions demonstrates that judges remain at the center of access to abortion in America and reinforces the possibility that another battle over reproductive rights could soon land at the high court.

Whether Kavanaugh was trying to downplay the consequences of the startling June decision or ignoring the persistence of anti-abortion foes, he and fellow conservatives who secured the 5-4 ruling failed to acknowledge the kind of dispute now before Judge Matthew Kacsmaryk.

A single federal judge – not a duly elected state legislature – is positioned to shut down access to an abortion drug and thwart women seeking to end pregnancies even in states where the procedure is still legal. Such an order could sweep nationwide, rather than be limited to one state.

This new fraught chapter, accompanied by protests at the scene and heightened court security, reveals how America’s abortion wars have only intensified since the June 24, 2022, decision in Dobbs v. Jackson Women’s Health Organization.

Oral arguments offer a partial look into a judge’s thinking, but during Wednesday’s four-hour hearing in an Amarillo courtroom, Kacsmaryk signaled an openness to the challengers’ effort to undo the FDA’s approval of abortion drugs. A 2019 appointee of former President Donald Trump, Kacsmaryk previously served as deputy general counsel at the First Liberty Institute, a conservative Christian legal advocacy group and expressed anti-abortion views.

The case began last November when a group of anti-abortion organizations and physicians filed their challenge in Kacsmaryk’s district – a move apparently intended to secure a sympathetic jurist. The challengers asked that he take the unprecedented step of ordering the FDA to withdraw approval for mifepristone, the first of two drugs used to abort a fetus.

The FDA authorization dates to 2000, and today medication abortions constitute slightly more than half of all abortions in the US.

As the challengers made their case against the FDA in written filings, they cited the Dobbs decision’s lifting of constitutional protections. But as Kavanaugh, who cast a critical vote, stressed, states still have the authority to keep abortion legal within their boundaries.

“To be clear, then,” Kavanaugh wrote in his concurring opinion, “the Court’s decision today does not outlaw abortion throughout the United States. On the contrary, the Court’s decision properly leaves the question of abortion for the people and their elected representatives in the democratic process. Through that democratic process, the people and their representatives may decide to allow or limit abortion.”

The second of former President Donald Trump’s three Supreme Court appointees, Kavanaugh said that the Dobbs decision “does not prevent the numerous States that readily allow abortion from continuing to readily allow abortion. That includes, if they choose, the amici States supporting the plaintiff in this Court: New York, California, Illinois, Maine, Massachusetts, Rhode Island, Vermont, Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, Michigan, Wisconsin, Minnesota, New Mexico, Colorado, Nevada, Oregon, Washington, and Hawaii.”

The legality of the procedure in those states could mean little, however, without access to needed medication.

When the Supreme Court reversed federal abortion rights last June, the justices disagreed over the ramifications for future abortion disputes. Three dissenting justices warned that it would keep federal judges in “the sphere of controversy,” leading them “to wade further into hotly contested issues, including moral and philosophical ones.”

Those three (Sonia Sotomayor, Elena Kagan and now-retired Stephen Breyer) invoked possible threats to medication abortions in their dissenting opinion.

“(T)he majority’s ruling today invites a host of questions about interstate conflicts,” they said. “Can a State bar women from traveling to another State to obtain an abortion? Can a State prohibit advertising out-of-state abortions or helping women get to out-of-state providers? Can a State interfere with the mailing of drugs used for medication abortions? The Constitution protects travel and speech and interstate commerce, so today’s ruling will give rise to a host of new constitutional questions. Far from removing the Court from the abortion issue, the majority puts the Court at the center of the coming ‘interjurisdictional abortion wars.’”

In the Texas case, the anti-abortion alliance argues that the FDA failed to sufficiently test for the safety and effectiveness of abortion drugs over the past two decades. Seeking immediate action by Kacsmaryk, they wrote in their filing, “Without an injunction, these dangerous drugs will result in physical complications, emotional trauma, and death for women.”

The FDA counters that mifepristone has been proven safe. Its lawyers point at the expertise of the agency and say the Alliance for Hippocratic Medicine wants to “upend that longstanding scientific determination based on speculative allegations of harm.”

In the Dobbs decision, Chief Justice John Roberts aligned partially with the liberals as he dissented from the wholesale reversal of Roe v. Wade. Yet, he declined to sign any of their joint dissent and wrote separately that he would have upheld the disputed 15-week ban on abortion from Mississippi – and gone no further.

Kavanaugh declined that stopping point. Any lingering right to abortion, he wrote in phrasing repeated throughout his opinion, “will be decided, as the Constitution dictates, by the people and their elected representatives through the constitutional processes of democratic self-government.”