Today in America, it doesn’t matter if you live in a Democratic-controlled state. It doesn’t matter if you live on the coasts, or if your governor is Democratic, or if Biden won your congressional district in 2020 by more than 20 points. It doesn’t matter if you live in a city that has more gay bars than churches or where every church flies a pride flag; it doesn’t matter if every mom you know planned all of her pregnancies, and it doesn’t matter if you’ve been managing your own reproduction rights with flexibility and privacy for your whole adult life.
It doesn’t matter if you think you’re safe or that abortion will always be legal where you live. Because the anti-abortion movement wants to impose a national ban on abortion and to take away your right to one. And they already have enough of their partisans in high enough positions – in elected office, yes, but mostly on the federal courts – to do so right now.
That’s the theory behind an injunction that was issued late last Friday by Matthew Kacsmaryk, a Trump-appointed district court judge in Amarillo, Texas, who issued a nationwide injunction invalidating the FDA’s 23-year-old approval of mifepristone, the first of two drugs used in a standard medication abortion. It is the most significant ruling affecting abortion access nationwide since Dobbs.
Mifepristone has been through the most rigorous medical testing possible, has a lower rate of serious complications than Tylenol and has been used to safely and effectively terminate pregnancies by hundreds of thousands of women both in the US and around the world for decades. It will remain available for now, as Kacsmaryk stayed his order for seven days so as to allow the Biden administration time to appeal, which they have done.
Complicating matters further, another district court in Washington state issued a conflicting injunction in another lawsuit – ordering the FDA to keep mifepristone on the market – just an hour after Kacsmaryk’s ban order was issued. The result is a complicated legal struggle, now almost certainly headed to the US supreme court, in which the lives, health and self-determination of millions of American women – and the dignity and full citizenship of all of them – hang in the balance.
Medication abortions using mifepristone now account for more than half of abortions in America. If you’ve ever had an abortion that you only had to take pills for, one of the pills you took was mifepristone. If the ruling goes into effect, abortion providers will be forced to perform only surgical abortions – which are more invasive and demand more resources – or medication abortions using only the second drug, misoprostol – which, while also very effective, are more painful and time-consuming.
There is already a thriving market of mail-order mifepristone in America, much of which is sent into the country from overseas, and which might have in theory evaded Kacsmaryk’s ban; but his ruling also revives the 1873 Comstock Act, a long-dormant and partially invalidated federal statute that prohibits sending abortion drugs or instruments through the mail, while also banning large swaths of material labeled “obscenity”.
Beyond its revival of a Victorian morality law, Kacsmaryk’s injunction is a dramatic escalation in anti-abortion jurisprudence, embracing fringe and extremist positions on abortion, pregnancy and women’s rights, adopting theories of judicial authority and legal standing that range form the tenuous to the bizarre, relying on discredited studies and anti-abortion junk science as statements of fact, and using exclusively the inflammatory, inaccurate and sensationalizing rhetoric of the anti-abortion movement. Throughout, the opinion refers to all pregnant women as “mothers”. Fetuses and embryos are described as “unborn humans”, or “unborn children”.
Kacsmaryk has never been shy about his personal views. For years, he sat on the board of an anti-abortion center, where his sister gave birth at 17; before his appointment to the bench by Trump, he worked at a rightwing legal shop that brought anti-abortion legislation. His injunction order embraces theories long held by only the most extreme fringes of the anti-abortion movement.
He makes empirically untrue claims about the supposed harms of mifepristone specifically, and abortion in general, to women, and he equates reproductive rights to eugenics. He gestures at dark conspiracy theories in his account of the original approval of mifepristone in 2000. And he signals and embrace of fetal personhood, a concept which, if enshrined in law, would ban all abortion nationwide, outlaw many kinds of birth control, curtail women’s access to medical treatments for everything from pre-eclampsia to depression to cancer, and vastly increase the government’s ability to monitor, surveil and punish a long list of activities in the daily lives of pregnant and reproductive-age women.
The order, in short, has none of the traditional judicial pretexts of impartiality or indifference to the policy outcome; it is not a document concerned with the law, but with enforcing an ideology. It reads like the rantings of an extremist activist, because it is.
But because Kacsmaryk is a judge, now those rantings have the force of law. If allowed to stand, Kacsmaryk’s order would deeply curtail access to abortion nationwide. Women in blue states and red states alike would find themselves degraded and humiliated by the law, taken out of control of their own lives, treated by the state as something less worthy than citizens and less competent than adults. But this was always how it was going to go: ever since the supreme court overturned Roe.
The current system, that tenuous balance in which abortion is nominally legal in some states, banned and sadistically punished in others, was never going to hold. The anti-abortion movement was never going to allow women in legal states to remain free; the pro-choice movement, at least the worthy parts of it, was never going to leave women in ban states behind.
The supreme court, controlled now by a group of ravenous rightwing partisans hardly more subtle than Kacsmaryk, is going to try to ban abortion nationwide – if not in this case, then in another one, sooner than you think. And the nation’s pro-choice majority, a newly enraged and motivated group of women voters and their allies, will stand up to them – with more fury than they anticipate.
Moira Donegan is a Guardian US columnist
