For decades, protecting states’ rights was the rallying cry for conservative activists bent on overturning Roe v. Wade, and it was even cited by the Supreme Court among its reasons for gutting the half-century precedent in June.
“The Constitution is neutral and leaves the issue for the people and their elected representatives to resolve through the democratic process in the States or Congress,’’ Justice Brett Kavanaugh wrote in his concurring opinion in Dobbs v. Jackson Women’s Health Organization.
Perhaps Justice Kavanaugh should send a note to fellow Trump appointee District Court Judge Matthew J. Kacsmaryk in Texas to remind him of that fact, after he issued an order that would thwart the will of millions of Americans who want to keep medical abortion and reproductive health care safe and available in their states.
With one stroke of his pen, Kacsmaryk — who has a long history of antiabortion views — issued an order Friday that would essentially serve as a nationwide rescission of the Food and Drug Administration’s approval of mifepristone, an essential element of the two-drug medical abortifacient that is also used to treat miscarriages and other health conditions. The effect of the order was stayed for one week to allow the Justice Department to appeal, which it quickly announced it would do.
But what Kacsmaryk’s order also does is gives the conservative, antiabortion extremists’ game away: There was nothing constitutionally principled about the decision to overturn Roe v. Wade. It was never about states’ rights or substantive due process run amok. It was an outcome-driven ruling designed not only to legislate abortion access from the bench but to open the doors wide for other conservative judges to follow suit, federalism principals be damned.
But there are some lawmakers who are actually fighting for states’ rights, and they include the Democratic officials from 17 states — including Vermont, Connecticut, Maine, and Rhode Island — and the District of Columbia who successfully argued before a federal judge in Washington state that the FDA should abide by its own rules and ensure that mifepristone remains available to residents in states where it is legal.
That decision, also issued on Friday, is directly at odds with Kacsmaryk’s and sets up a legal battle royal that is bound for the Supreme Court. Once it arrives there, will Kavanaugh and his fellow members of the conservative wing stand by the very federalism principles they hold so dear? Because doing so would mean siding with the Democratic state and D.C. officials, who — unlike Kacsmaryk — are not seeking to set nationwide policy.
Massachusetts is not a party to the action in the Washington state federal court, but Governor Maura Healey announced Monday an executive order to protect access to mifepristone in the Bay State and protect the providers and patients. She also announced that the University of Massachusetts Amherst had procured a year’s worth of doses of the drug.
“We are going to make sure we have enough mifepristone in the state to cover women as long as they need it,’’ Healey said at a press conference outside the State House with other local state and federal officials.
The constitutional strength of Democratic leaders’ case is underscored by a previous effort out of Massachusetts to stop distribution of an opioid that was struck down. In ruling against the 2014 effort by the Deval Patrick administration to block the distribution of the opioid painkiller Zohydro within the state in an effort to stem addiction, a federal court said governors cannot substitute their judgment for that of the FDA because that would violate the Constitution’s Supremacy Clause.
The same principle remains true.
Kacsmaryk’s ruling “was based on ideology, not science and certainly not the law,’’ Massachusetts Attorney General Andrea Campbell said. “Well, that’s not how the law works. That’s not how science works. That’s not how drug approval processes work. And this judge does not have the power to do it.’’
That should be plain as the Constitution’s text to the justices on the Supreme Court when this case arrives at their door. If they see it any other way, it’ll be clear that they are focused on the outcome, not the underlying constitutional principles. And that would be the definition of activism.
Kimberly Atkins Stohr is a columnist for the Globe. She may be reached at email@example.com. Follow her on Twitter @KimberlyEAtkins.
Image Credits: Gettyimages