People hold signs in support of abortion rights outside the U.S. Supreme Court in Washington on April 21. The court ruled to keep mifepristone available for the time being.OLIVIER DOULIERY/AFP/Getty Images
Last year, in overturning abortion rights created by the 1973 Roe v. Wade decision, the Supreme Court sent a strong signal that it wanted to get out of the abortion debate. Whether with reluctance or enthusiasm, it jumped back in Friday.
But by plunging into the most dangerous waters in American politics – and by assuring that the abortion pill mifepristone remains available, at least for the time being – the justices avoided dipping into another toxic area of the era’s debate, the role and prerogatives of the country’s regulatory agencies.
The drug was approved more than two decades ago by the Food and Drug Administration (FDA), and the challenge to its availability this spring was in large measure a challenge to the authority of regulatory agencies themselves.
Rarely do two incendiary elements of contemporary contention – in this case, abortion and the regulatory state – meet in one moment and, with Friday’s ruling, in one Supreme Court action.
Abortion has played a major role in the American debate for six decades and has assumed fresh importance in the past 10 months, widening the gap between the two parties and, because of the backwash of last year’s Supreme Court decision, has set off a state-by-state race to enact restrictions on the procedure or to buttress protections for it.
The power of Washington regulators has been under assault since the Ronald Reagan years of the 1980s, but conservative opposition to the welter of agencies scattered about Washington grew more fervent in the Donald Trump years, when the phrase “deep state” acquired currency and potency as part of an attack both on big government and entrenched bureaucrats.
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“This decision may be about abortion, but it is also about FDA approval and whether or not the court has the authority to intervene in its processes,” said Alison Gash, a University of Oregon political scientist. “The implications for judicial intervention in this area are sweeping and extend far beyond abortion – for they have implications for a whole bunch of ways the executive branch operates and whether the court has the authority to intervene.”
The twin issues embedded in this matter were the impetus for the Biden administration’s keen interest, and ultimately its involvement, in this case. The President has signalled he is willing to engage aggressively in courts to protect abortion rights, which is a key element of the Democratic Party’s policy profile. It is an issue of great salience to the female voters who have enormous influence in the party, and – Democratic strategists believe – an important element of the party’s appeal to voters.
Public opinion polls regularly show that Americans support abortion rights – Republican donors at a Nashville conference last weekend were presented with survey data suggesting that four out of five Americans support the availability of the procedure – and political tests in Montana, Kansas, Kentucky and Wisconsin have affirmed the Republicans’ vulnerability on the issue.
The Republican National Committee is expected to complete a report in coming days blaming the party’s poor performance in last year’s midterm congressional elections on its strong identity with the anti-abortion movement.
Even so, in the wake of the Supreme Court decision bouncing abortion rights to the states, new restrictions have been enacted in several states, including Florida, where Governor Ron DeSantis, a leading GOP presidential candidate, last week signed a ban after six weeks of pregnancy.
In recent days, abortion opponents have redoubled their efforts to restrict access further, professing little interest in poll data suggesting the issue is damaging to Republican political prospects.
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“Make no mistake,” Senate Majority Leader Chuck Schumer of New York said in a statement, “Republicans will continue to pursue their nationwide abortion ban until they impose their anti-choice agenda on all Americans.”
Last year’s Supreme Court decision overturning Roe v. Wade turbocharged the abortion debate, and a move to ban the abortion pill would have created a new frenzy, this time opening regulatory decisions – ranging from medicine to labour – to challenges that would transform the way the government, and companies, did business.
“That would interject even more chaos into the system,” said Alesha Doan, a University of Kansas scholar and author of Opposition and Intimidation: The Abortion Wars and Strategies of Political Harassment. “Last year’s decision created legal chaos and set in motion a public-health crisis that will last for years.”
The abortion-pill issue came to the high court after a Trump-appointed federal judge, Matthew J. Kacsmaryk, invalidated the FDA’s approval of the drug. Then another federal judge, Thomas O. Rice, appointed by Barack Obama, ruled in the opposite direction.
Friday’s decision, awaited eagerly and anxiously, came in a single paragraph. It bore no justice’s signature. It was accompanied by dissents from Justices Samuel Alito, who wrote the decision overturning Roe, and Clarence Thomas, who has suggested that last year’s abortion decision was a precursor to new, future high-court actions in areas that have been the subjects of an American culture war.