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APRIL 11, 2023

Meyerson on TAP

Resisting Kacsmaryk

In Los Angeles, both the DA and the sheriff say there'll be no arrests
or prosecutions when women take abortion pills, regardless of court
rulings.

The blue states are stocking up on abortion pills, but that's only the
beginning of the backlash against the latest attempted curtailment of
women's health and bodily autonomy from the anti-choice right.

Responding to the ruling by U.S. District Judge Matthew Kacsmaryk that
overturned the FDA's approval of the abortion pill mifepristone, which
has been used safely by millions of American women since the FDA
authorized its use a quarter-century ago, three Democratic
governors-Washington's Jay Inslee, Massachusetts's Maura Healey,
and California's Gavin Newsom-have announced their respective states
will purchase either that drug or, in California, the second widely used
abortion pill, misoprostol.

I may be unduly optimistic in thinking this, but these are rainy-day
purchases. I say that because I'd be surprised if the Supreme
Court-yes, even this Supreme Court-upholds Kacsmaryk's ruling,
which is likely to come before it in the not-very-distant future. I
wouldn't be surprised if the dynamic (or dinosauric) duo of Thomas and
Alito vote to uphold it, but I'd wager at least ten (10) (X) dollars
that the three Democratic appointees will be joined by the chief justice
and at least one other associate in striking it down. There are so many
reasons the justices can choose to override Kacsmaryk, including the
dubious standing of the plaintiffs (none of whom were women who'd
taken the pill), the judge's misstatements of fact in arguing the
perils to health that mifepristone allegedly posed, and a host of
Supreme Court precedents that have held that courts must defer to the
scientifically grounded decisions of federal agencies that Congress
empowered to make scientifically grounded decisions. None of that should
deter Alito and Thomas, but I suspect at least one of the three Trump
appointees on the bench, and possibly more than one, will welcome the
lack-of-standing issue as a way to overturn Kacsmaryk without actually
taking a position on abortion as such. That, in turn, leads me to think
that there will be a majority decision overturning Kacsmaryk, and a
concurring opinion from at least the three Court liberals that also
affirms the right to choose.

Meanwhile, the blue-state pushback against last Friday's judicial
jihad goes beyond the stocking-up of pills. In this case, though, it's
not really a state. At the same time that California Gov. Newsom was
announcing the pill purchase, officials in the state's (and the
nation's) largest county-Los Angeles, population ten million, which
makes it larger than about 40 states-announced they were going one
step further. Leaders of the County Board of Supervisors, as well as Los
Angeles City Mayor Karen Bass, held a press conference
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with the leader of L.A.'s Planned Parenthood chapter and declared the
county a "safe haven" for abortion rights. What made this particularly
groundbreaking was the separate announcement by L.A. County's elected
district attorney that his office would not prosecute cases involving
individual reproductive care, as well as an announcement from the
county's elected sheriff that sheriff's deputies "will not cooperate
with attempts to prosecute people who are seeking abortion care."

Presumably, that means that if the Supreme Court upholds Kacsmaryk but
Angelenos are still able to purchase or otherwise obtain mifepristone,
no arrests or prosecutions will follow. It may also mean that no action
would be taken against pharmacies still selling the drug if they're
somehow able to obtain it.

Echoes here of Andrew Jackson's probably apocryphal comment that Chief
Justice "John Marshall has made his decision; now let him enforce it!"

But if this is now effectively the law in America's largest county,
why not in its second-largest (Cook County, Illinois, home to Chicago)?
Why not in New York's boroughs, in San Francisco, in Seattle's King
County, and so on down the liberal line? The United States is no
stranger to the geography of resistance, as several Northern states and
cities demonstrated in the 1850s by their resistance to enforcing the
Fugitive Slave Act. As our current not-quite civil war rolls on,
that's a pretty good model to follow.

~ HAROLD MEYERSON

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Nursing Home Bosses Lavish Campaign Money on Florida
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Lawmakers, including Gov. Ron DeSantis, have been enriched by a powerful
crop of out-of-state owners seeking carve-outs for their industry. BY
MAUREEN TKACIK

Insurance Lobbyists Force Government to Heel on Medicare Advantage
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But advocates see an opening for reining in the worst abuses of the
program. BY DAVID DAYEN

A Revolution in Cost-Benefit Rules
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How Biden's new team at the Office of Management and Budget is
reversing several decades of pseudo-technical right-wing mischief BY
ROBERT KUTTNER

How Model-Dependent Policymaking Ignores Race
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Despite decades of policies aimed at creating new generations of
homeowners, many African Americans grapple with a hostile housing
sector. Where did the assumptions go wrong? BY GABRIELLE GURLEY

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