Kavanaugh Will Ultimately Decide Abortion Pill’s Fate
The Supreme Court’s middle justice has long experience in administrative law. Will he defend the FDA now?
Deciders in chief.
Photographer: Chip Somodevilla/Getty ImagesThe ruling issued by the US Court of Appeals for the 5th Circuit restricting mifepristone distribution is a transparent invitation to the Supreme Court. The 5th Circuit would like the justices to think that it’s chosen a “middle” position between two dueling rulings: the ruling from the conservative federal judge in Texas blocking the abortion drug’s distribution and that of the liberal federal judge in Washington state defending the status quo. Whether the high court buys this argument will depend on one man, Justice Brett Kavanaugh.
The only sensible part of the 5th Circuit’s opinion is the part where the court said that the statute of limitations had run on the plaintiffs’ capacity to challenge the Food and Drug Administration’s approval of mifepristone in 2000. The effect was to nullify the Texas judge’s ruling that held (without gathering evidence or allowing a full briefing) that the FDA’s authorization was unreasonable.