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abortion pill ruling
Ocasio-Cortez Rebukes Alito 'Tantrum' and 'Highly Politicized' Supreme Court
"In our system of checks and balances, SCOTUS’s reckless behavior warrants a check from the legislative and executive branches. This is not unprecedented, it's how our system is designed to avert tyranny."
Apr 22, 2023
Congresswoman Alexandria Ocasio-Cortez accused U.S. Supreme Court Justice Samuel Alito of throwing a 'tantrum' in his written dissent to Friday night's ruling over the abortion medication mifepristone and said the Court's right-wing majority has become an ideological political force that must be checked by the two other branches of government.
Backed only by Justice Clarence Thomas, Alito's dissent evoked the charge that President Joe Biden may not have honored a ruling by the court that was unfavorable to the administration's position. As it was, an unknown majority on the Court decided to maintain availability of the widely-used medication, a relief—even if temporary—for reproductive rights defenders nationwide.
After one legal expert called the portion of Alito's dissent challenging the hypothetical actions of Biden "unwarranted and completely unbefitting a Supreme Court Justice," Ocasio-Cortez chimed in to say that the administration, had it been necessary, would have been right to have the FDA ignore a Court ruling that barred access to a legitimately approved drug used safely by millions each year.
"The court," said Ocasio-Cortez, "has devolved into a highly politicized entity that is rapidly delegitimizing. Open discussion of checking the court's abuse of power and defying Kacsmaryk possibly contributed to pause/consideration."
\u201cAnother perspective: despite Alito\u2019s tantrum, this is a good thing.\n\nThe court has devolved into a highly politicized entity that is rapidly delegitimizing. Open discussion of checking the court\u2019s abuse of power & defying Kacsmaryk possibly contributed to pause/consideration\u201d— Alexandria Ocasio-Cortez (@Alexandria Ocasio-Cortez) 1682122849
Ahead of the high court's ruling on Friday, many advocates and lawmakers—including the New York Democrat—had called on Biden and the FDA to ignore the lower-court ruling of U.S. District Court Judge Matthew Kacsmaryk, a far-right ideologue in Texas and Trump appointee.
"The court is a political entity currently engaged in overreach and abuse of power," the congresswoman said in her Friday night rebuke. "In our system of checks and balances, SCOTUS’s reckless behavior warrants a check from the leg + executive branches. This is not unprecedented, it’s how our system is designed to avert tyranny."
Dante Atkins, a progressive political strategist and former congressional staffer, said Ocasio-Cortez's assessment was correct.
"The only people still pretending that the court is legitimate are a handful of Boomer Dems," Atkins tweeted. "Both MAGA and most younger Dems recognize what it is: an unelected partisan super-legislature."
Correction: An early version of this article indicated the decision was 7-2, but that is not clear from the unsigned order that issued the stay. What is known that at least five justices backed it while only two, Alito and Thomas, made their dissent known. This has been clarified in the piece.
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Trump-Appointed Appeals Court Judges Allow Abortion Pill Limits to Take Effect
Right-wing Judges Kurt Engelhardt and Andrew Oldham upheld the part of a Texas judge's ruling that halted the recent FDA decision allowing mifepristone to be distributed by mail.
Apr 13, 2023
Two Trump appointees on the 5th Circuit Court of Appeals issued a decision late Wednesday allowing parts of a Texas judge's widely denounced abortion pill ruling to take effect, a move that will restrict access to mifepristone as the case proceeds.
Judges Kurt Engelhardt and Andrew Oldham temporarily blocked the part of the Texas judge's ruling that would have invalidated the Food and Drug Administration's 2000 approval of mifepristone.
But the Trump appointees, whose nominations were vocally opposed by rights groups, said the Texas judge's order to suspend later agency actions that expanded access to the safe medication—including a 2021 decision allowing mifepristone to be distributed by mail—can take effect.
The two appeals court judges also halted 2016 changes that allowed the pills to be prescribed at up to 10 weeks of pregnancy instead of seven weeks. The judges argued the anti-abortion groups that sued the FDA last year brought a timely-enough challenge to the agency's later policy changes.
Catharina Haynes, a George W. Bush appointee and a member of the three-judge appeals court panel that issued the late Wednesday decision, dissented from the ruling, saying she would have paused U.S. District Judge Matthew Kacsmaryk's order in full.
The Biden Justice Department is widely expected to appeal to the U.S. Supreme Court, which ended the constitutional right to abortion last year. Democratic-led states, including California and Washington, have been stockpiling mifepristone in preparation for court rulings that limit access.
In 2020, more than half of all abortions in the U.S. were medication abortions, which are typically carried out using mifepristone in combination with misoprostol—though misoprostol can be used alone.
The appeals court panel's decision came after hundreds of Democratic lawmakers and reproductive rights groups filed amicus briefs warning that, if upheld, Kacsmaryk's order would have "perilous consequences" that "reach far beyond mifepristone."
"Providers and patients rely on the availability of thousands of FDA-approved drugs to treat or manage a range of medical conditions, including asthma, HIV, infertility, heart disease, diabetes, and more," 240 members of Congress wrote in their brief to the 5th Circuit Court of Appeals.
In a separate brief, the Center for Reproductive Rights and more than 100 other organizations argued that Kacsmaryk—also a Trump appointee—penned an order rooted in "debunked data" and packed with "anti-abortion rhetoric rather than scientific terminology."
"If the decision...takes effect, people even in states where abortion remains legal or protected will be denied access to mifepristone, imperiling access to abortion and jeopardizing the health of persons unable to timely obtain care," the groups wrote. "Neither science nor law supports this result."
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'No': Biden White House Rejects Demands to Ignore Trump Judge's Abortion Pill Ruling
Rep. Alexandria Ocasio-Cortez and Sen. Ron Wyden urged the administration to ignore the order, calling it a dangerous abuse of power.
Apr 11, 2023
The Biden White House on Monday said it would not simply ignore a Trump-appointed judge's ruling that could imperil access to a safe abortion medication, dismissing a demand from progressive lawmakers who characterized the decision as a flagrant abuse of judicial power with far-reaching implications.
"No," an unnamed White House spokesperson told Talking Points Memo when asked whether it would instruct the Food and Drug Administration (FDA) to ignore the right-wing judge's ruling invalidating the agency's decades-old approval of mifepristone, which is typically used as part of a two-pill regimen to end a pregnancy.
"We stand by FDA's approval of mifepristone, and we are prepared for a long legal fight, if needed," the spokesperson continued. "The focus of the administration is on ensuring that we prevail in the courts. There is a process in place for appealing this decision and we will pursue that process vigorously and do everything we can to prevail in the courts."
During a briefing on Monday, White House press secretary Karine Jean-Pierre said that "we are going to always follow the law" after a reporter asked whether the administration intends to comply with Kacsmaryk's order.
"Doesn't mean that we're not going to fight," she added.
The White House's adherence to business-as-usual legal procedure comes even as top Biden administration officials acknowledged that, should U.S. District Judge Matthew Kacsmaryk's ruling be upheld, the entire FDA approval process could be thrown into chaos and placed at the mercy of far-right judges.
"You're not talking about just mifepristone," Health and Human Services Secretary Xavier Becerra toldCNN on Sunday. "You're talking about every kind of drug. You're talking about our vaccines. You're talking about insulin. You're talking about the new Alzheimer's drugs that may come on."
"The courts are now going rogue with rulings that no longer even pretend to respect precedent, jurisprudence, or limits to overreach."
The U.S. Justice Department formally appealed the Texas judge's unilateral ruling on Monday as legal analysts and rights groups grappled with the decision's glaring flaws and potentially profound impacts on abortion rights and other freedoms.
"His order, which applies nationwide, marks the first time in history that a court has claimed the authority to single-handedly pull a drug from the market, a power that courts do not, in fact, have," Slate court writer Mark Joseph Stern noted shortly after the ruling was made public Friday evening.
"Kacsmaryk's ruling is indefensible from top to bottom and will go down in history as one of the judiciary's most shocking and lawless moments," Stern argued. "Within an hour of its release, the decision also spurred the start of a constitutional crisis: A federal judge in Washington swiftly issued a dueling injunction compelling the FDA to continue allowing mifepristone in 17 states and the District of Columbia, which brought a separate suit in Washington."
In a late Friday statement, Sen. Ron Wyden (D-Ore.) characterized Kacsmaryk's ruling as a product of the far right's "dangerous and undemocratic takeover of our country's institutions" and said the FDA would be well within its legal authority to ignore it.
"The FDA, doctors, and pharmacies can and must go about their jobs like nothing has changed and keep mifepristone accessible to women across America," said Wyden, who chairs the Senate Finance Committee. "If they don't, the consequences of banning the most common method of abortion in every single state will be devastating."
Rep. Alexandria Ocasio-Cortez (D-N.Y.) issued a similar call and warned that the failure to resist out-of-control judges "paves a dangerous road of worsening abuse of power."
"The courts are now going rogue with rulings that no longer even pretend to respect precedent, jurisprudence, or limits to overreach," the New York Democrat wrote. "They are long overdue for a check and balance."
\u201cGOP are losing their mind over this, but there\u2019s precedent - including their own.\n\nCourts ordered Trump to fully restore DACA. They ignored it w/ Republican support.\n\nGOP operate in complete contempt for the law until they\u2019re in a position to shred Constitutional & human rights.\u201d— Alexandria Ocasio-Cortez (@Alexandria Ocasio-Cortez) 1681063423
Even one Republican—Rep. Nancy Mace of South Carolina—said the FDA should ignore the Texas judge's ruling after one of her GOP colleagues suggested cutting funding for the agency if it does so.
"This is an FDA-approved drug," Mace said in a CNN appearance on Monday. "Whether you agree with its usage or not, that's not your decision. That is the FDA's decision."
\u201cRepublican @NancyMace\u00a0says she believes the FDA should ignore the Texas judge\u2019s ruling. \u201cThis is an FDA approved drug. Whether you agree\u00a0with its usage or not, that's\u00a0not your decision. That is the FDA\u2019s decision.\u201d\u201d— Kaitlan Collins (@Kaitlan Collins) 1681127975
Kacsmaryk's order is set to take effect this coming Friday barring an intervention from the Fifth Circuit Court of Appeals, which is hearing the Biden administration's legal challenge. The Justice Department, which called the ruling "extraordinary and unprecedented," has requested that the order be put on hold as the legal process plays out.
Given the right-wing bent of the fifth circuit, which includes six Trump-appointed judges, the chances that Kacsmaryk's order will be upheld appear strong—meaning the case could be on a path to the conservative-dominated U.S. Supreme Court.
"Only the Supreme Court can resolve this looming crisis, and it has a very limited window of time in which to do so," Stern last week. "It has been less than a year since the court claimed to rid itself of the abortion issue. Now it must decide whether American patients will lose access to an abortion drug that has been on the market for 23 years and proven safer than Tylenol—on the order of a single, rogue judge."
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