On April 7, U.S. District Judge Matthew Kacsmaryk of Texas issued a ruling striking down the FDA’s authorization of mifepristone, a drug used for medication abortions. 

For a more detailed analysis of Judge Kacsmaryk’s ruling — it is quite bad — I recommend reading Slate’s Mark Joseph Stern, but here’s a quick summary. Kacsmaryk argues that the FDA has not properly reviewed the health risks of mifepristone. “Due to FDA’s lax reporting requirements,” he writes, the number of bad results is “likely far higher than its data indicate.” He uses language that endorses the concept of “fetal personhood,” and holds that the Comstock Act — an unenforced 19th-century law written to ban the mailing of “every obscene, lewd, lascivious, indecent, filthy or vile article, matter, thing, device, or substance” — bans transporting abortion medication or any of its ingredients across state lines is illegal. 

Of course, Judge Kacsmaryk is simply calling balls and strikes in a neutral manner; his ruling has nothing at all to do with the fact that he worked for the First Liberty Institute, an anti-abortion advocacy group, before being appointed to the bench by President Trump in 2019. 

Kacsmaryk’s injunction was set to go into force on April 14. But just after he released his ruling, District Judge Thomas O. Rice in Washington state, an Obama appointee, ruled in a separate case that the FDA’s current restrictions on mifepristone are too strict and ordered the agency not to restrict the drug any further. The Biden administration appealed the Texas ruling, first to the 5th Circuit Court of Appeals and then to the Supreme Court. On Friday, Justice Samuel Alito issued a temporary stay, preventing Kacsmaryk’s ruling from taking effect until the Supreme Court can hear the full case; a decision is expected in the coming weeks. 

Here are the facts about mifepristone. Medication abortion — usually a combination of mifepristone and misoprostol — is the most common method of abortion in the country, often preferred due to lower cost, increased restrictions on abortion clinics and greater privacy. It makes up more than half of all US abortions, typically in the first 10 to 12 weeks of pregnancy. It is safe: according to a “New York Times” review of over 100 studies, zero found medication abortion to be dangerous; the serious complication rate was 0.31 percent, compared to 0.16 percent for surgical abortions and 1.4 percent for childbirth. If mifepristone is banned, it’s possible to use misoprostol alone for medication abortion, with a slightly lower efficacy than the combination. The plaintiffs in the Texas suit also sought a ban on misoprostol, but only requested a preliminary injunction against mifepristone. 

Here is another fact: when the Supreme Court overturned Roe v. Wade last summer, the justices in the majority argued that courts should never have gotten involved in making abortion policy. To quote Justice Alito in his majority opinion, Dobbs “return[ed] the issue…to the people’s elected representatives.” And yet, here we have a single judge in Texas making policy for the entire nation. What gives? 

Well, it’s simple, really. The other day I was talking to a smart guy who works at a GOP polling firm about the 2024 election. He said it would be hard for Republicans to run on leaving abortion policy to the states; I said that’s because they clearly don’t want to do that. Because if you take the pro-life position that abortion is murder seriously, then of course you won’t be satisfied with leaving it up to the states. If you believe in the fetal personhood doctrine — a legal argument which holds that fetuses are full human beings entitled to the protections of the Constitution — then of course you’ll support a national ban on abortion, no if’s, and’s or but’s. 

Of course, Republicans don’t want to say that part out loud because a national abortion ban is horrifically unpopular. Per Gallup’s polling, in 2021, pre-Dobbs, 33 percent of Americans were “satisfied” with US abortion policy, compared to 17 percent who were dissatisfied and wanted less strict laws and 27 percent who wanted stricter ones; in 2023 those figures were 26 percent, 46 percent and 15 percent, respectively. According to a new report by the Public Religion Research Institute, support for making abortion illegal in all cases doesn’t poll above 14 percent in any state; support for overturning Roe v. Wade is under 50 percent in all 50. In Wisconsin, the Democrat-aligned candidate for state supreme court just beat the Republican-aligned candidate 56-44 by campaigning on a promise to overturn the state’s 1849 abortion ban. Last year, voters in states ranging from deep blue — Vermont and California — to purple — Michigan — to red — Montana and Kentucky — all passed pro-choice ballot measures. You get the point. 

But the GOP is fundamentally committed to an extreme, out of touch position on abortion — which is why Republican politicians, whether in suits or robes, keep finding it so difficult to tell people with a straight face that they’ll leave the issue to the states: because they won’t.

 

MILAN SINGH is a first-year in Pierson College. His fortnightly column, “All politics is national” discusses national politics: how it affects the reader’s life, and why they should care about it. He can be reached at milan.singh@yale.edu.

MILAN SINGH
Milan Singh is a sophomore in Pierson College. His column, "All politics is national," runs fortnightly.