Last Friday, the Supreme Court temporarily curbed Judge Matthew Kacsmaryk’s ruling suspending the abortion pill mifepristone’s FDA approval. The legal drama surrounding the subsequent conflicting rulings and popular backlash make Kacsmaryk’s decision far from a definitive pro-life victory.
Furthermore, the deafening silence from the GOP and hesitancy from the Supreme Court’s most conservative justices make the prospect of a united pro-life front uncertain. The powerful legal, governmental, and private forces resisting the measure mean that all pro-lifers and conservatives must coalesce to have a fighting chance.
The Supreme Court’s recent decision puts the Texas ruling and the broader abortion pill in jeopardy. The brief order granted emergency requests by the Department of Justice to halt the April 7 ruling by Kacsmaryk to pull mifepristone’s FDA approval, thus preserving broad public access to the pill. Alarmingly, only two justices, Samuel Alito and Clarence Thomas, dissented, with none of the Trump-appointed justices releasing similar statements.
The halt order is the latest in a string of setbacks that calls into question the future of the mifepristone debate.
Opposition groups and judicial entities immediately limited the scope of Kacsmaryk’s ruling, with the conservative-leaning Fifth Circuit Court of Appeals temporarily blocking its full implementation. Acquiescing to the DOJ’s requests to keep the drug on the market, the appeals court maintained mifepristone’s FDA approval while pro-life and pro-abortion litigators continued battling in the courts.
The fact that the Fifth Circuit — deemed the most influential and conservative judiciary outside the Supreme Court — bowed to the pressure is a telling sign of the uncertain trajectory that the Texas ruling may take. As for the Supreme Court, the future of the Kacsmaryk decision is even grimmer.
Justice Samuel Alito himself issued the pause that temporarily nullifies the Texas judge’s ruling. And while most of the Supreme Court is conservative-leaning, with Trump appointing one-third of the current justices, legal analysts are skeptical as to whether the conservative majority will side with the pro-lifers.
Recent history shows that the Supreme Court has often aligned itself with the FDA instead of the lower judiciary. In January 2021, Alito and Thomas joined the majority in affirming the agency’s authority after a Maryland district judge suspended an FDA measure mandating in-person pickups of mifepristone.
And in a 2009 dissent, Alito argued that the court’s precedents “prohibit any state from countermanding” approvals made by the FDA, clearly defining the agency’s supremacy over food and drug safety. According to Temple University Law School dean Rachel Rebouche, both Chief Justice John Roberts and Justice Brett Kavanaugh may show deference to the FDA given their skepticism over “federal court power used in service of undercutting the ability of an expert agency to apply its congressional authority.”
With the Supreme Court’s trajectory on the abortion pill case grayer than ever, conservative lawmakers will need to keep the movement’s momentum alive. However, many GOP figures opted to either stay silent or speak out against the Texas ruling. Both Rep. Nancy Mace and Sen. Lindsey Graham of South Carolina opposed the district court’s decision, with Mace calling on the FDA to ignore Kacsmaryk’s ruling.
Only one Republican senator, Cindy Hyde-Smith of Mississippi, publicly supported Kacsmaryk’s ruling. Of the 2024 presidential hopefuls, only former Vice President Mike Pence publicly supported the decision, while frontrunners Donald Trump and Ron DeSantis were notably silent. Trump himself attributed the GOP’s lackluster performance to the abortion issue, stating, “People that pushed so hard, for decades, against abortion, got their wish from the US Supreme Court and just plain disappeared, not to be seen again.”
Today’s ruling on abortion drugs is a victory for pregnant mothers & their unborn children. I’m grateful the Court reined in the @US_FDA for recklessly violating the law & jeopardizing patient safety. https://t.co/DTZCBpoyFK
— U.S. Senator Cindy Hyde-Smith (@SenHydeSmith) April 8, 2023
At the risk of losing tight elections, Republicans are employing an “ostrich strategy” of deflecting the abortion issue as much as possible. Over 72 percent of Americans oppose abortion pill restrictions while the disappointing midterm results and the GOP’s recent Wisconsin Supreme Court loss make Republicans wary of explicitly backing the anti-abortion cause. However, embracing strategic ambiguity on the abortion issue only weakens the pro-life movement’s momentum.
As CEO and President of Concerned Women for America Penny Young argued, “Republicans have cowered in fear as the consultants and campaign advisors tell them not to talk about abortion. Republicans are badly outspent and fail to boldly defend their position on an issue that has been a defining policy of American conservatism.”
Meanwhile, Democrats turned the abortion issue into a winning campaign strategy that stymied the predicted “red wave” and further entrenched pro-abortion policies in key states across the country. The Democratic Party is unified in stopping the Texas decision. Alongside politicians, the pharmaceutical lobby is aggressively pushing Washington to overturn Kacsmaryk’s ruling, with over 200 industry leaders calling for its reversal.
These policies, while detrimental to the pro-life movement, demonstrate what Republicans can do if they marshal their resources together to fight the pro-abortion wave. Conservatives cannot afford to bury their heads in the dirt and hope that the issue will resolve itself.
The GOP must go all-in on defending the rights of the unborn. If not, the party risks losing both the political and moral battle it has spent decades fighting for.