Casting the tiebreaking vote to overturn Roe v. Wade last year, Justice Brett Kavanaugh wrote in a separate opinion that the “basic legality” of abortion “will be resolved by the people and their representatives in the democratic process in the States or Congress.” Honest observers knew that Kavanaugh’s statement wasn’t true then, or at least that anti-abortion activists didn’t want it to be. Friday’s extreme ruling on abortion from his fellow Donald Trump appointee, U.S. District Judge Matthew Kacsmaryk in Texas, is the latest proof that it’s not true now, either.
Indeed, it takes a certain level of naivety, at best, to believe the whole “returning abortion to the states” ruse — which Justice Samuel Alito used as well in his majority opinion in Dobbs v. Jackson Women’s Health Organization. For that ruse to have been true, the overturning of Roe v. Wade — a decades-long conservative goal, to be sure — would have needed to be the culmination of right-wing efforts, rather than the beginning of the next chapter. That next chapter, as we saw play out Friday, involves using whatever legal tools are available to stop abortions.
No one believes that Kacsmaryk, a longtime anti-abortion activist, cares about the nuance of U.S. Food and Drug Administration protocol. His order purporting to halt the FDA’s decades-old approval of mifepristone is rather a means to the end of banning abortion. The Trump judge’s opinion is full of anti-abortion rhetoric that’s in lockstep with the fetal personhood movement — which promotes the idea that a fetus has the same rights as a person, thus making abortion murder. For example, he approvingly cited the notion when he referred to the “unborn humans extinguished by mifepristone — especially in the post-Dobbs era.”
For judges like Kacsmaryk, the Dobbs ruling didn’t return the abortion issue to the states — it placed health care in the hands of right-wing jurists to outlaw by any means necessary. Women in blue states who voted for politicians who support abortion rights can still be thwarted by a red-state judge’s power grab, if Kacsmaryk’s order goes into effect. (Remember, he put it on hold for a week while the government appeals, and on Monday the DOJ filed for a stay in the 5th U.S. Circuit Court of Appeals, the most extreme appeals court in the country.)
Now, the Trump judge’s unprecedented order, backed by shoddy legal reasoning — if you could call it reasoning — is poised for a Supreme Court resolution. Whatever happens in the 5th Circuit, the justices might have the last word, especially with Friday’s ruling out of Washington state that contradicts Kacsmaryk’s, making high court intervention even more likely. If the case does get to the Supreme Court, the justices will be faced with the “return to the states” lie. How Kavanaugh and the court’s GOP majority confront that reality — or further contort themselves to keep the lie going — remains to be seen.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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