Dueling Court Rulings Cause Abortion Confusion

It has been almost a year now since the U.S. Supreme Court Dobbs decision overturned Roe v. Wade, effectively sending the question of abortion back to the states. States have responded in one of two ways—some have outlawed abortion, while others have reaffirmed the legality of the procedure.

But in every state, the decisions have been made by legislatures. The people’s representatives have, in theory at least, passed abortion statutes that reflect the will of their constituents. But now come dueling court decisions that could sidestep state policies and throw the nation’s drug approval system into chaos.

Last Friday a federal judge in Texas granted an injunction blocking the FDA’s approval of the abortion drug mifepristone, meaning doctors could not prescribe it in any state to terminate a pregnancy. The judge delayed his order for seven days to allow time for appeals.

The same day in Washington State a federal judge sided with the state’s Democratic Attorney General and ordered the Food and Drug Administration to maintain “the status quo” in 17 states and Washington, D.C. so women there would still have access to mifepristone.

The result of the dueling decisions is confusion for all parties and uncertainty for women who believed they could legally obtain mifepristone and for doctors who prescribe the drug. In West Virginia, where abortion is generally illegal, abortion is permitted in limited circumstances, and more than half of all abortions are medicine-induced.

The Texas judge is a Trump appointee and strongly pro-life. The anti-abortion group that brought the action clearly shopped around for a sympathetic ear. The Washington state judge is an Obama appointee and pro-choice advocates used their suit to counter the Texas decision.

These rulings have the hallmarks of judicial activism. It is fundamentally unfair that one judge can upend the decisions by 50 state legislatures. As the Wall Street Journal opined, “The (Supreme Court) Justices in Dobbs sought to extricate themselves from regulating abortion, but partisans on both sides don’t want to let them.”

Typically, the judiciary would give deference to legislative decisions, but the biggest power play in Washington these days for any administration is to get as many like-minded judges as possible appointed to the federal bench. In the case of the Texas judge, if his ruling stands one can imagine more forum shopping by advocacy groups that object to any number of FDA approved drugs, therapies and treatments.

We know our legislative politics are broken, and now it appears the judiciary is not far behind.

 





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