Erasing Roe: Opinion and Commentary Post-Dobbs

Two weeks after Texas District Judge Matthew Kacsmaryk issued a nationwide ban on the abortion pill mifepristone—revoking the Food and Drug Administration’s approval of the drug from 2000—the Supreme Court stayed the order, pending a full appeal on the merits of the case. The decision delays not only Kacsmaryk’s ruling but also the ruling by the US Court of Appeals for the Fifth Circuit that reinstated the 2000 FDA approval of the drug but banned a 2016 FDA update that extended usage of mifepristone from seven to 10 weeks.

What that means is that abortion pills are legal up to 10 weeks again—for now.

This is a victory for reproductive rights, insofar as keeping what rights people still have in the wake of last year’s decision in Dobbs v. Jackson Women’s Health Organization overturning Roe v. Wade counts as a “victory.” The case now goes back to the Fifth Circuit, which will hold a hearing and, almost certainly, issue another shambolic ruling against the abortion pill. That ruling will eventually be appealed to the Supreme Court, so we don’t know when access to medical abortion will be put at risk again.

Even so, it’s not a total victory. The high court should have dismissed Kacsmaryk’s decision outright, rather than staying it pending further review. That’s because Kacsmaryk’s decision was not only wrong on the merits but also a complete disaster in technical and procedural terms. The plaintiffs who brought the suit to prohibit the abortion pill—a group of hyper-Christian “doctors”—did not show that they suffered any harm from the FDA approval process, and thus shouldn’t have been allowed to sue in the first place. Moreover, the lawsuit should have been time-barred—there’s a six-year statute of limitations on challenging FDA decisions—and Kacsmaryk simply ignored it. These procedural deficiencies meant that the case could have been dismissed, without dragging it out until whatever date the court picks for hearing the full case.