SCOTUS flung a boomerang late Friday that after looping around the U.S Fifth Circuit Court of Appeals will almost certainly return to the High Court. The stakes could hardly be higher, going even beyond American women’s access to safe and legal abortions, a right they had possessed for a half century prior to the legal demolition of Roe last June. At the time, the SCOTUS majority insisted that it was not invoking a national prohibition of abortion, but rather leaving that question to the states. But it’s clear now that that assurance was disingenuous, and that the attempt by a cherry-picked evangelical lower court judge in Amarillo to ban use of mifepristone was a brazen back-door run to impose a de-facto national ban.
The basis for that decision by Judge Matthew Kacsmaryk could not have been more labyrinthine, premised as it was on overturning an FDA safety approval that was more than two decades old. Judges imposing their religious and social views to effectively make national medical and scientific policy is frightening, and its chilling effect on future drug development, whatever the drug and whatever the condition it is designed to treat.
It’s significant that Friday night’s SCOTUS decision had only two known dissenters—Alito and Thomas—and that only Alito put his name on it and put pen to paper. That means that at least one member of the Court’s fire-breathing Conservative Amen Corner, likely along with Chief Justice John Roberts, sided with the majority. I can’t help but wonder if this vote won’t prove to be another judicial head-fake by a Court that realizes it has a major p.r. problem and wants to fade some heat, at least for now.
We’ll find out when this boomerang flies back to The Supremes, which it almost certainly will.
