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Spokane, Washington  Est. May 19, 1883

We the People: Dueling abortion-pill rulings show expanding role of judicial branch

A security guard roams the courtyard of the Spokane Federal Courthouse building on June 1, 2020, in downtown Spokane.  (TYLER TJOMSLAND/The Spokesman-Review)

Each week, The Spokesman-Review examines one question from the Naturalization Test immigrants must pass to become United States citizens.

Today’s question: What does the judicial branch do?

WASHINGTON – When the U.S. Supreme Court overturned Roe v. Wade last June, ending a nearly 50-year federal right to terminate a pregnancy, the court’s conservative majority said they were leaving the issue up to elected lawmakers in Congress and each state’s legislature.

Instead, nationwide abortion access is once again being determined by the judicial branch after a federal judge in Texas on April 7 blocked the U.S. government’s approval of mifepristone, a drug used for more than half of all abortions in the country. Minutes later, a federal judge in Spokane issued a contradictory ruling, ordering the Food and Drug Administration to keep the medication available.

After the 5th U.S. Circuit Court of Appeals on Wednesday upheld much of the Texas judge’s ruling, barring doctors from prescribing the pills after seven weeks of pregnancy or sending them by mail, Spokane-based Judge Thomas Rice on Thursday clarified that his ruling meant mifepristone would remain available in Washington and 16 other states, plus the District of Columbia, whose attorneys general filed the case in the Eastern District of Washington.

Those dueling decisions set up a showdown in the Supreme Court, which said Friday it would keep the current rules in place at least until Wednesday, to give both sides time to weigh in on whether the FDA improperly approved the drug, which more than 100 scientific studies have found to be safe and effective since it was first approved in 2000.

Article III of the Constitution establishes the judicial branch and empowers judges – in district courts, appellate courts and the Supreme Court – to review and explain laws, resolve disputes about laws and decide if a law violates the Constitution. Meanwhile, the legislative branch is charged with making laws, and agencies in the executive branch can enact and enforce laws that are within their authority, such as the FDA regulating drugs.

Now, some legal observers worry the court battle over mifepristone is letting the judicial branch overstep its authority, effectively making laws and telling executive-branch agencies what they can and can’t do.

“Courts are now weaponized to essentially legislate, and that’s what’s happening here,” said Deirdre Bowen, a law professor at Seattle University. “What it means for the U.S. government, frankly, is a trend towards destabilization of what the three branches of the government are and what they are supposed to do, and that is not to overreach into the other branches of government.”

In the decades after the 1973 Roe v. Wade decision and subsequent rulings that upheld the right to abortion before a fetus could live outside the womb, antiabortion activists fought to get the Supreme Court to give power back to the states. Yet when that happened last year, voters supported abortion rights in ballot measures in several states. Even in Republican-majority Kentucky, Montana and Kansas, voters rejected antiabortion referendums.

While Americans have complicated views on abortion, polling by the Pew Research Center shows most want it to remain legal with some restrictions in the later stages of pregnancy, which were permitted under Roe. Mifepristone is used for abortions in the first 10 weeks of pregnancy and is also used to manage miscarriages.

After running into that wall of public opinion in the 2022 elections, abortion opponents turned to their old adversary, the federal courts. In November, a newly formed antiabortion group called the Alliance for Hippocratic Medicine filed a lawsuit challenging the FDA’s approval of mifepristone at a federal court in Amarillo, Texas. Because of a quirk in the judicial system, choosing that particular court guaranteed that the case would be heard by Judge Matthew Kacsmaryk, who was appointed by former President Donald Trump and whose anti-abortion views were well known.

Russell Wheeler, an expert in the federal judiciary at the Brookings Institution, a nonpartisan think tank, said Congress creates judicial districts in each state and divides some of those districts into divisions.

“It has the effect, unintended or otherwise, of allowing ‘judge shopping,’ ” Wheeler said, noting that Democrats have done the same thing. “It’s not just the Republicans, but they’ve really made a fine art out of it, of picking these single-judge divisions in which to file cases.”

Linda Jellum, a law professor at the University of Idaho, said judges on both sides of the abortion issue have made their personal views clear since the Supreme Court overturned Roe along ideological lines. She pointed to the recent election in Wisconsin of a state Supreme Court justice who ran explicitly on a promise to overturn an abortion ban that dates back to 1849.

“It’s a really sad day when judges are viewed as political actors as opposed to independent actors who are trying to impose the rule of law, and we’ve seen more and more of that across the country, not just with this particular example in Texas,” Jellum said. “It’s become relatively clear from the many things that have been going on in the country that politics play a role in a judge’s decision.”

Unlike the Northern District of Texas, the Eastern District of Washington has no such divisions. When Washington’s Bob Ferguson and 17 of his fellow Democratic attorneys general filed their lawsuit, it could have been heard by any of the nine judges in the district, two of whom were appointed by former Republican President George W. Bush.

Rice, who earned his undergraduate and law degrees from Gonzaga University, worked as a federal prosecutor in the Eastern District of Washington from 1987 until he was appointed by former Democratic President Barack Obama in 2011. But Jim McDevitt, a Republican who was Rice’s boss as U.S. Attorney for the Eastern District of Washington from 2001 to 2010, said his former second-in-command never showed any allegiance to a party or ideology.

“From the standpoint of integrity, I can’t say enough about Tom. He’s the best of the best,” McDevitt said. “Never in the nine years that I worked with him did I ever see any partisan leanings.”

Bowen said while there’s nothing wrong with Kacsmaryk having a particular moral position on an issue like abortion, it becomes a problem “when that is a substitute for appropriate legal analysis under the law.”

Wayne Unger, a law professor at Gonzaga University, said Kacsmaryk’s decision on mifepristone shows that the Texas judge ignored basic judicial principles in favor of his personal ideology.

“From a legal perspective, this is an unsound ruling,” he said.

First, Unger said, Kacsmaryk apparently glossed over the fact that the plaintiffs in the Texas case – none of whom were patients who had taken the pill – didn’t demonstrate that they had been harmed by it. They relied heavily on speculative dangers, which Unger said the Supreme Court has said aren’t enough to have “standing” to bring a case.

Second, he said, the ruling fell short on the merits. Kacsmaryk ignored the more than 100 scientific studies that have concluded mifepristone is safe and didn’t acknowledge the fact that pregnancy and miscarriage can be dangerous, while citing dubious studies, including one based on anonymous blog posts on an antiabortion website.

Kacsmaryk also seemingly ignored the fact that the statute of limitations on the FDA’s initial approval of the drug, in 2000, had expired. The famously conservative 5th Circuit Court of Appeals, despite upholding much of his ruling, threw out part of it because of that basic error.

“The worst thing a judge can do,” Bowen said, “is decide the outcome and then work backwards to develop the rationale, rather than saying, ‘What’s the statute I need to interpret here? And what are the facts that need to be applied to that statute?’”

In contrast, Unger said, “Judge Rice showed a level of restraint with his ruling that is clearly not shown in the Northern District of Texas.”

Rice didn’t side fully with Ferguson and the other Democratic attorneys general, but his ruling would keep mifepristone available in Washington and most Democratic-majority states. In the coming days, however, the Supreme Court is considering only the Texas case.

The stakes of the high court’s decision are high, Bowen said, and further demonstrate the concentration of power in the judicial branch.

“We are now seeing that the judiciary is overstepping both in the legislative branch and now also the executive branch by second-guessing the interpretation and application of science to the regulatory decisions, and that could have far-reaching effects,” she said. “I hate to be cynical, but it doesn’t do anything in creating faith in the federal court system.”