Conflicting federal court rulings last week reflect the can of worms opened last summer by the U.S. Supreme Court. They also emphasize the need for Congress to codify a national policy regarding abortion rights.
While abortion opponents celebrated the Supreme Court decision in Dobbs v. Jackson, saying that the legality of abortion should be left to the states, subsequent events demonstrate that the issue is not so simple. Differences in state laws regarding major issues are problematic, exacerbating societal divisions and diminishing the “united” portion of our nation’s name.
In one example, a federal judge in Texas on Friday blocked Food and Drug Administration approval of the drug mifepristone, which is one of two drugs used in conjunction to induce abortions. Mifepristone received FDA approval in 2000. U.S. District Judge Matthew J. Kacsmaryk, a Donald Trump appointee, placed a one-week stay on his order, allowing time for an appeal.
Less than one hour after Kacsmaryk’s ruling, U.S. District Judge Thomas O. Rice of the Eastern District of Washington, a Barack Obama appointee, ordered the federal government to keep the drug available in 17 states that had filed the suit, along with the District of Columbia.
Washington Attorney General Bob Ferguson said: “Part of the reasoning for my decision to file a decision here in Washington state is because I could not leave the fate of women’s reproductive rights in Washington in the hands of a single judge in Texas appointed by Donald Trump whose views on reproductive freedom are well known and unfortunate. … I am not surprised by either ruling.”
As The Washington Post surmised: “The remarkable one-two punch set up an extraordinary legal clash that will almost certainly be decided by the polarized U.S. Supreme Court. It provides a real-time window into how liberals are trying to counter a flood of conservative litigation in a federal judiciary reshaped by Trump, and how the political right is using single-judge court districts to advance a deeply conservative agenda.”
Regardless of how one feels about abortion, Kacsmaryk’s decision should be horrifying. He overturned a 23-year-old ruling from experts empowered by Congress to make such decisions and follow rigorous testing standards.
In the Dobbs decision last year, Supreme Court Justice Brett Kavanaugh wrote in a Pollyannaish fashion that returning abortion questions to the states would end the court’s involvement.
“After today’s decision, the nine Members of this Court will no longer decide the basic legality of pre-viability abortion for all 330 million Americans,” he absurdly suggested. “That issue will be resolved by the people and their representatives in the democratic process in the States or Congress.”
Not quite. Instead, we have Idaho passing a law to keep residents from helping somebody travel to another state for abortion services. And we have Washington Gov. Jay Inslee responding by saying Idaho health care providers are welcome in our state: “Make no mistake, Governor Little, the laws of another state that seek to punish anyone in Washington for lawful actions taken in Washington will not stand.”
The divisions are profound. While the United States must maintain room for varying opinions, the vast differences between states are growing and are unsustainable. On major issues such as abortion and gun rights and public schools, we are increasingly divisible.
Unanimity should not be expected. But Congress can help carve out a middle ground in which many can find comfort.
