Remember how conservatives used to decry “judicial activism?”? As I recall, that was before they began to see an advantage in some judicial activism of their own.
In its simplest definition, judicial activism describes how a justice approaches judicial review. It refers to judges who overreach beyond their sworn responsibility to interpret the Constitution and instead decide cases based on their personal agendas.
A lot of people on the anti-choice side of our never-ending abortion debate accused the Supreme Court of activism in its 1973 Roe v. Wade decision that legalized abortion nationwide.
And a lot of people accused the high court of activism last year with its Dobbs v. Jackson Women’s Health Organization decision that returned to the states the power to regulate any aspect of abortion not protected by federal law.
Now nine months after the Supreme Court returned the right to have an abortion to “the people’s elected representatives,” some of the people’s unelected federal judges seem to keep taking it back in dueling judicial decisions.
Particularly notable — or notorious — recently is Matthew Kacsmaryk, a federal judge in Texas who blocked the Food and Drug Administration’s approval of mifepristone, one of two drugs commonly used to end pregnancies in the first 10 weeks.
Millions of American women have used it in the 23 years since its FDA approval and with few complications. But you wouldn’t know that from Judge Kacsmaryk’s decision.
It’s the first time that a judge has revoked the FDA’s approval of a medication. Kacsmaryk’s decision means residents of even abortion-friendly states like Illinois could find themselves facing new obstacles — and that’s precisely what the Trump-appointed Kacsmaryk’s record shows he wants to do.
“I think his order shows why the lawsuit was brought in Amarillo,” Stephen Vladeck, a constitutional law professor at the University of Texas, told ABC News. “It gives the appearance of being a sort of judicial decision that was written to reach a foreordained result.”
On Friday, Supreme Court Justice Samuel Alito granted a temporary stay that ensures mifepristone remains widely available until Wednesday while giving the high court enough time to study the case. Alito issued the stay following a request from the Biden administration.
Kacsmaryk is the sole judge seated in the Amarillo division of the U.S. District of Northern Texas, where he has heard such contentious issues as immigration, LGBTQ protections, and other culture wars and often has ruled against the Biden administration.
Did someone mention politics? Let’s face it. For all the noble and, in multiple cases, sincere talk about saving babies, anti-abortion politics is really about power, grievance, and getting the upper hand on the other side.
The irony of this political moment is in how much the anti-abortion political movement has become a victim of its own success. The most celebrated recent example came in Wisconsin, where Judge Janet Protasiewicz won election to the state’s Supreme Court, which has given liberals a 4-3 majority for the first time in 15 years.
Political organizers say abortion played a huge part in that victory, particularly by encouraging suburban swing voters to turn out. The abortion issue also has been credited with helping to drive other Democratic victories in November, including Michigan and Pennsylvania.
Surveys released in the last two months by the Pew Research Center and the Public Religion Research Institute found that only about 1 in 4 Americans believe abortion drugs should be illegal. Support was particularly strong among women younger than 30.
But are Republicans hearing that message? Even in the conservative GOP, only 35% favored making abortion pills illegal, according to Pew– which may help explain why we’re not hearing more anti-abortion ballyhoo lately from the major Republican candidates.
Florida Gov. Ron DeSantis was particularly notable. He signed a 15-week abortion ban into law in 2022, then upped his proposal this year to a six-week ban. The state legislature approved it Thursday, but the usually grandstanding DeSantis quietly signed it and announced it with only a late-night press release.
That’s prudent. Before boasting about such a radical move, maybe he should wait to see if his voters actually want it.
E-mail Clarence Page at cpage@chicagotribune.com.
©2023 Clarence Page. Distributed by Tribune Content Agency, LLC.
