Supreme Court has voted to overturn abortion rights, draft opinion shows

[OttoVonBismarck]

US lawyers: how relevant is it that this judge is effectively removing the FDA's authority here? If I was a pharmaceutical company, shouldn't I be very concerned that the US regulatory body no longer has the final say on approval of my multi-billion dollar investment?

People that run pharmaceutical companies understand that a district court judge can trivially rule just about any nonsense he wants. It will not meaningfully concern them unless his decision is allowed to take effect and is upheld on appeal--which even in the 5th Circuit and in this Supreme Court is incredibly unlikely. The United States is the most lucrative pharmaceutical market in the world, I suspect they aren't going to lose any sleep over this.

[OttoVonBismarck]

In yet another case of "we used to be smarter", from 1937 to sometime in the 1970s, if a lower court ruling was going to invalidate or block the effects of a law or Federal policy, the action had to be heard before a three judge panel. The rulings of those panels were fast tracked for review to the circuit courts. This was done specifically so that individual judges couldn't fuck up shit by issuing harmful rulings--recognizing that while a stupid ruling might be overturned, it might take a long while for it to get overturned and that can be very disruptive and damaging.

Why Congress decided to rollback this common sense judicial reform in the 1970s is hard to understand.

[Sheilbh]

This is the sort of story that does seem a little "national divorce-y" to me with an organised, extreme minority trying to use the counter-majoritarian tools in the US constitution to impose their will on the rest of the country.

[The Minsky Moment]

US lawyers: how relevant is it that this judge is effectively removing the FDA's authority here? If I was a pharmaceutical company, shouldn't I be very concerned that the US regulatory body no longer has the final say on approval of my multi-billion dollar investment?

It is very relevant and the implications go well beyond the pharma context.

Because of constitutional separation of power, courts have traditionally been reluctant to second guess agency decision-making within the areas of their legal authority.  Challenges to agency action normally can only success if "arbitrary and capricious," a very difficult standard to prove. And under the "Chevron" doctrine, agency interpretations of their own rules are given substantial deference.  Historically, both these tendencies were supported by conversative justices - who saw them as a way of protecting presidential powers from "movement" activists and activist judges on the left. The idea is that a legal challenge to agency action can't involve judges second guessing the Executive Branch and substituting their judgment. Rather, agency action could be challenged only if it clearly involved no judgment whatsoever - a purely arbitrary action.

However, that brand of conservatism has been increasingly supplanted by activism from the right. The activists are motivated by a powerful ideological belief that the entire federal administration is malign and must be cut down to the nub. So Chevron deference has been dying the death of a thousand cuts, as courts whittle down the scope of its application and effect.  And the "arbitrary and capricious" standard has been radically reinterpreted to recent years to mean whatever Judge X disagrees with.  That this, taken to its logical conclusion, would meanthe neutering of all executive action through executive agencies is precisely the point.

[Hamilcar]

Thanks, Minsky.

[Solmyr]

So some reactionary judge in backwater Texas can essentially block access to medication across the entire country, in every other state? That system seems... broken.

[OttoVonBismarck]

So some reactionary judge in backwater Texas can essentially block access to medication across the entire country, in every other state? That system seems... broken.

That isn't clear--other courts have to weigh in.

Additionally due to how unprecedented it would be, it is also unclear exactly how the Biden administration would respond. If the judge's ruling is ultimately allowed to go into effect after 7 days and no higher court quashes it, that would mean the FDA's formal approval of the drug for sale as a prescription medication would no longer be legal.

However, it would potentially open the door to various forms of chicanery. I haven't seen anyone really weigh out the options but I've seen a lot of people say the FDA should just "ignore" his order. The issue with that is the FDA can ignore his order and act as though the drug is still approved, but I suspect most physicians and people in the medical community will be loathe to rely on that to keep prescribing and dispensing the drug--because they won't have clear protection from retaliatory actions at the State level.

Other potential options would be Biden directing the FDA to issue an emergency use approval of the drug--if the original approval from 2000 is no longer legal, then in theory FDA could re-evaluate the drug like it does any other unapproved drug, and while historically hesitant to use it, the FDA does have the power to rapidly issue emergency authorization. They could even get real wild and declare it an OTC drug as well.

Historically the FDA is not supposed to simply be an implement of the political parts of the executive branch, but that has been significantly undermined in recent years, and under longstanding principles supported by most of the conservatives in the Supreme Court "because the President feels like it" has been apparently a valid reason to meddle in supposedly independent agencies plenty.

That would result in another round of litigation--something the administration has started to indicate is it may start fighting cases being filed in this particular Amarillo district--it has some options to try and get cases moved to a different district for example that frankly the Biden administration has been weak on pursuing.

Additional test cases could also be put before liberal judges to issue contradictory rulings--which makes it a convoluted issue when the agency then has multiple contradictions to deal with.

IMO while I suspect some of the conservative 6 would like to see this drug banned, this ruling is so oppositional to the sort of Chamber of Commerce and big business backslapping style of life these people have built their entire existence around to likely stand. It just creates too much of a mess for too important an industry. While all six of the conservatives are anti-constitutional fascists, the reality is they are not the same sort of firebrand as Kacsmaryk. They aren't the sort of constitutional fascists who want every drug a weird RFK Jr type person wants to get banned being subject to the whim of random district judges.

[grumbler]

Kacsmaryk is an Evangelical, and 63% of evangelicals believe that we are living in the end times.  An evangelical judge is unlikely to consider the long-term consequences of their decisions, since there is no long term.

[Razgovory]

Kacsmaryk is an Evangelical, and 63% of evangelicals believe that we are living in the end times.  An evangelical judge is unlikely to consider the long-term consequences of their decisions, since there is no long term.

I looked up that poll  https://www.pewresearch.org/fact-tank/2022/12/08/about-four-in-ten-u-s-adults-believe-humanity-is-living-in-the-end-times/

9% of Atheists also believe we are living the end times.

Oddly Black people really believe it.  68%

[Sheilbh]

9% of Atheists also believe we are living the end times.

Maybe climate - there's a strand of apocalyptic thinking there which I imagine is mainly atheist spiritually.

[Josquius]

9% of Atheists also believe we are living the end times.

Maybe climate - there's a strand of apocalyptic thinking there which I imagine is mainly atheist spiritually.

I have heard it put quite convincingly that a lot of nutty right wing American lack of care for climate change is down to wanting  to hasten the biblical apocalypse.

As to athiests thinking it.... It need not necessarily be spiritualism to think the world is fucked. Doomerism is a problem.

[Hamilcar]

If Congress decides to do hearings, can they subpoena Supreme Court justices?

What about referring them to DOJ (or IRS?). I'm not at all an expert but aren't gift taxable? I am sure Thomas didn't declare those luxury trips on his tax forms...

[OttoVonBismarck]

Gift tax is owed by the person giving the gift, not the recipient.

Congress can subpoena basically anyone, but its powers to compel an appearance are limited.

[Syt]

https://time.com/6303701/a-rape-in-mississippi/

She Wasn't Able to Get an Abortion. Now She's a Mom. Soon She'll Start 7th Grade.

Ashley just had a baby. She's sitting on the couch in a relative's apartment in Clarksdale, Miss., wearing camo-print leggings and fiddling with the plastic hospital bracelets still on her wrists. It's August and pushing 90 degrees, which means the brown patterned curtains are drawn, the air conditioner is on high, and the room feels like a hiding place. Peanut, the baby boy she delivered two days earlier, is asleep in a car seat at her feet, dressed in a little blue outfit. Ashley is surrounded by family, but nobody is smiling. One relative silently eats lunch in the kitchen, her two siblings stare glumly at their phones, and her mother, Regina, watches from across the room. Ashley was discharged from the hospital only hours ago, but there are no baby presents or toys in the room, no visible diapers or ointments or bottles. Almost nobody knows that Peanut exists, because almost nobody knew that Ashley was pregnant. She is 13 years old. Soon she'll start seventh grade.

In the fall of 2022, Ashley was raped by a stranger in the yard outside her home, her mother says. For weeks, she didn't tell anybody what happened, not even her mom. But Regina knew something was wrong. Ashley used to love going outside to make dances for her TikTok, but suddenly she refused to leave her bedroom. When she turned 13 that November, she wasn't in the mood to celebrate. "She just said, 'It hurts,'" Regina remembers. "She was crying in her room. I asked her what was wrong, and she said she didn't want to tell me." (To protect the privacy of a juvenile rape survivor, TIME is using pseudonyms to refer to Ashley and Regina; Peanut is the baby's nickname.)

The signs were obvious only in retrospect. Ashley started feeling sick to her stomach; Regina thought it was related to her diet. At one point, Regina even asked Ashley if she was pregnant, and Ashley said nothing. Regina hadn't yet explained to her daughter how a baby is made, because she didn't think Ashley was old enough to understand. "They need to be kids," Regina says. She doesn't think Ashley even realized that what happened to her could lead to a pregnancy.

On Jan. 11, Ashley began throwing up so much that Regina took her to the emergency room at Northwest Regional Medical Center in Clarksdale. When her bloodwork came back, the hospital called the police. One nurse came in and asked Ashley, "What have you been doing?" Regina recalls. That's when they found out Ashley was pregnant. "I broke down," Regina says.

Dr. Erica Balthrop was the ob-gyn on call that day. Balthrop is an assured, muscular woman with close-cropped cornrows and a tattoo of a feather running down her arm. She ordered an ultrasound, and determined Ashley was 10 or 11 weeks along. "It was surreal for her," Balthrop recalls. "She just had no clue." The doctor could not get Ashley to answer any questions, or to speak at all. "She would not open her mouth." (Balthrop spoke about her patient's medical history with Regina's permission.)

At their second visit, about a week later, Regina tentatively asked Balthrop if there was any way to terminate Ashley's pregnancy. Seven months earlier, Balthrop could have directed Ashley to abortion clinics in Memphis, 90 minutes north, or in Jackson, Miss., two and a half hours south. But today, Ashley lives in the heart of abortion-ban America. In 2018, Republican lawmakers in Mississippi enacted a ban on most abortions after 15 weeks of pregnancy. The law was blocked by a federal judge, who ruled that it violated the abortion protections guaranteed by Roe v. Wade. The Supreme Court felt differently. In their June 2022 decision in Dobbs v. Jackson Women's Health Organization, the Supreme Court overturned the constitutional right to abortion that had existed for nearly half a century. Within weeks, Mississippi and every state that borders it banned abortion in almost all circumstances.

Balthrop told Regina that the closest abortion provider for Ashley would be in Chicago. At first, Regina thought she and Ashley could drive there. But it's a nine-hour trip, and Regina would have to take off work. She'd have to pay for gas, food, and a place to stay for a couple of nights, not to mention the cost of the abortion itself. "I don't have the funds for all this," she says.

So Ashley did what girls with no other options do: she did nothing.

Clarksdale is in the Mississippi Delta, a vast stretch of flat, fertile land in the northwest corner of the state, between the Mississippi and Yazoo rivers. The people who live in the Delta are overwhelmingly Black. The poverty rate is high. The region is an epicenter of America's ongoing Black maternal-health crisis. Mississippi has the second-highest maternal-mortality rate in the country, with 43 deaths per 100,000 live births, and the Delta has among the worst maternal-healthcare outcomes in the state. Black women in Mississippi are four times as likely to die from pregnancy-related complications as white women.

Mississippi's abortion ban is expected to result in thousands of additional births, often to low-income, high-risk mothers. Dr. Daniel Edney, Mississippi's top health official, tells TIME his department is "actively preparing" for roughly 4,000 additional live births this year alone. Edney says improving maternal-health outcomes is the "No. 1 priority" for the Mississippi health department, which has invested $2 million into its Healthy Moms, Healthy Babies program to provide extra support for new mothers. "There is a sense of following through, and not just as a predominantly pro-life state," says Edney. "We don't just care about life in utero. We care about life, period, and that includes the mother's life and the baby's life."

Mississippi's abortion ban contains narrow exceptions, including for rape victims and to save the life of the mother. As Ashley's case shows, these exceptions are largely theoretical. Even if a victim files a police report, there appears to be no clear process for granting an exception. (The state Attorney General's office did not return TIME's repeated requests to clarify the process for granting exceptions; the Mississippi Board of Medical Licensure and the Mississippi State Medical Association did not reply to TIME's requests for explanation.) And, of course, there are no abortion providers left in the state. In January, the New York Times reported that since Mississippi's abortion law went into effect, only two exceptions had been made. Even if the process for obtaining one were clear, it wouldn't have helped Ashley. Regina didn't know that Mississippi's abortion ban had an exception for rape.

Even before Dobbs, it was perilous to become a mother in rural Mississippi. More than half the counties in the state can be classified as maternity-care deserts, according to a 2023 report from the March of Dimes, meaning there are no birthing facilities or obstetric providers. More than 24% of women in Mississippi have no birthing hospital within a 30-minute drive, compared to the national average of roughly 10%. According to Edney, there are just nine ob-gyns serving a region larger than the state of Delaware. Every time another ob-gyn retires, Balthrop gets an influx of new patients. "These patients are having to drive further to get the same care, then they're having to wait longer," Balthrop says.

Those backups can have cascading effects. Balthrop recalls one woman who had to wait four weeks to get an appointment. "That's unacceptable, because you don't know if she's high risk or not until she sees you," the doctor says says. Her patient "didn't know she was pregnant. Now the time has lapsed so much that she can't drive anyplace to terminate even if she chose to."

Early data suggests the Dobbs decision will make this problem worse. Younger doctors and medical students say they don't want to move to states with abortion restrictions. When Emory University researcher Ariana Traub surveyed almost 500 third- and fourth-year medical students in 2022, close to 80% said that abortion laws influenced where they planned to apply to residency. Nearly 60% said they were unlikely to apply to any residency programs in states with abortion restrictions. Traub had assumed that abortion would be most important to students studying obstetrics, but was surprised to find that three-quarters of students across all medical specialties said that Dobbs was affecting their residency decisions.

"People often forget that doctors are people and patients too," Traub says. "And residency is often the time when people are in their mid-30s and thinking of starting a family." Traub found that medical students weren't just reluctant to practice in states with abortion bans. They didn't want to become pregnant there, either.

And so Dobbs has compounded America's maternal-health crisis: more women are delivering more babies, in areas where there are already not enough doctors to care for them, while abortion bans are making it more difficult to recruit qualified providers to the regions that need them most. "People always ask me: 'Why do you choose to stay there?'" says Balthrop, who has worked in the Delta for more than 20 years. "I feel like I have no choice at this point."

The weeks went on, and Ashley entered her second trimester. She wore bigger clothes to hide her bump, until she was so big that Regina took her out of school. They told everyone Ashley needed surgery for a bad ulcer. "We've been keeping it quiet, because people judge wrong when they don't know what's going on," Regina says. She's been trying to keep Ashley away from "nosy people." For months, Ashley spent most of the day alone, finishing up sixth grade on her laptop. The family still has no plans to tell anybody about the pregnancy. "It's going to be a little private matter here," Regina says.

Ashley has ADHD and trouble focusing, and has an Individualized Education Program at school. She had never talked much, but after the rape she went from shy to almost mute. Regina thinks she may have been too traumatized to speak. At first, Regina couldn't even get Ashley to tell her about the rape at all.

In an interview in a side bedroom, while Ashley watched TV with Peanut in another room, Regina recounted the details of her daughter's sexual assault, as she understands them. It was a weekend in the fall, shortly after lunchtime, and Ashley, then 12, had been outside their home making TikToks while her uncle and sibling were inside. A man came down the street and into the front yard, grabbed Ashley, and covered her mouth, Regina says. He pulled her around to the side of the house and raped her. Ashley told Regina that her assailant was an adult, and that she didn't know him. Nobody else witnessed the assault.

Shortly after finding out Ashley was pregnant, Regina filed a complaint with the Clarksdale Police Department. The department's assistant chief of police, Vincent Ramirez, confirmed to TIME that a police report had been filed in the matter, but refused to share the document because it involved a minor.

Regina says that another family member believed they had identified the rapist through social-media sleuthing. The family says they flagged the man they suspected to the police, but the investigation seemed to go nowhere. Ramirez declined to comment on an ongoing investigation, but an investigator in the department confirmed to TIME that an arrest has not yet been made. With their investigation still incomplete, police have not yet publicly confirmed that they believe Ashley's pregnancy resulted from sexual assault.

Regina felt the police weren't taking the case seriously. She says she was told that in order to move the investigation forward, the police needed DNA from the baby after its birth. Experts say this is not unusual. Although it is technically possible to obtain DNA from a fetus, police are often reluctant to initiate an invasive procedure on a pregnant victim, says Phillip Danielson, a professor of forensic genetics at the University of Denver. They typically test DNA only on fetal remains after an abortion, or after a baby is born, he says.

But almost three days after Peanut was born, the police still hadn't picked up the DNA sample; it was only after inquiries from TIME that officers finally arrived to collect it. Asked at the Clarksdale police station why it had taken so long after Peanut's birth for crucial evidence to be collected, Ramirez shrugged. "It's a pretty high priority, as a juvenile," he says. "Sometimes they slip a little bit because we've got a lot going on, but then they come back to it."

Ashley doesn't say much when asked how it felt to learn she was pregnant. Her mouth twists into a shy grimace, and she looks away. "Not good," she says after a long pause. "Not happy."

Regina's own feelings about abortion became more complicated as the pregnancy progressed. She got pregnant with her first daughter at 17, and was a mother at 18. "I was a teen," says Regina, now 33. "But I wasn't as young as her."

Regina had considered abortion during one of her own pregnancies. But her grandmother admonished her, "Your mama didn't abort you." Now Regina felt caught between her family's general disapproval of abortion and the realization that her 13-year-old daughter was pregnant as the result of a rape. "I wish she had just told me when it happened. We could have gotten Plan B or something," Regina says, referring to the emergency contraceptive often known as the "morning-after pill." "That would have been that."

Balthrop often sees this kind of ambivalence. Clarksdale is in the heart of the Bible Belt, and many of her patients are Black women from religious families. Even if they want to terminate their pregnancies, Balthrop says, many of them ultimately decide not to go through with it. Since the Dobbs decision, however, Balthrop has seen an increase in "incomplete abortions," which is when the pregnancy has been terminated but the uterus hasn't been fully emptied. Medication abortions— abortions managed with pills, which are increasingly available online—are overwhelmingly safe, but occasionally can have minor complications when the pills are not taken exactly as directed. "They're having complications after—not serious, but they'll come in with significant bleeding, and then we still have to finish the process," Balthrop says, explaining that they sometimes have to evacuate dead fetal tissue.

According to Balthrop, Ashley didn't have complications during her pregnancy. But she didn't start speaking more until she felt the baby move, around her sixth month. "That's when it hit home," Balthrop says. "She'd complain about little aches and pains that she had never had before. That's when her mom would come in and say, 'She asked me this question,' and the three of us would sit and talk about it."

How did Ashley feel in anticipation of becoming a mother? "Nervous," is all she will say. Toward the end of the pregnancy, she was terrified of going into labor, Balthrop recalls. Most of her questions were about pushing, and delivery, and how painful it would be. She was focused on "the delivery process itself," Balthrop says. "Not, 'What am I going to do when I take this baby home?'"

The Clarksdale Woman's Clinic, where Balthrop practices, is across the street from the emergency room at Northwest Regional Medical Center, where Ashley first learned she was pregnant. The clinic is large and welcoming, with comfortable chairs and paintings of flowers on the walls. The staff is kind and efficient, the space is clean, and it helps that the three ob-gyns on staff are Black, since most of the patients are Black women. The clinic's strong reputation attracts patients from an hour away in all directions. It is a lifeline in a vast region with few other maternity health options.

Even for healthy patients, it can be dangerous to be pregnant in such a rural area. "We have patients who walk to our clinic. They don't have transportation," says Casey Shoun, an administrative assistant at Clarksdale Woman's. Some can get Medicaid transportation, but it's notoriously unreliable. The trip can be hard even for local residents: the roads leading to the clinic don't have good sidewalks, and temperatures in the Delta regularly reach 100 degrees in the summer.

Shoun says the clinic gets patients who are six months pregnant by the time they have their first prenatal appointment. "We've had patients who go to the hospital, and they've already delivered," Shoun says. Balthrop recalls one woman who went into labor about seven weeks early, and had to drive 45 minutes to get to the hospital. She was too late. "By the time she got here, the baby had passed already," Balthrop says.

Clarksdale Woman's is equipped to handle routine appointments for a healthy pregnancy like Ashley's. But a pregnant woman with any complication at all—from deep-vein thrombosis to diabetes, preeclampsia to advanced maternal age—will have to make a three-hour round trip drive to Memphis to see the closest maternal-fetal-medicine specialist. The most vulnerable patients are often the ones who have to travel the farthest for pregnancy care.

One morning in August, as the clinic filled, Balthrop allowed TIME to interview consenting patients in the waiting room and parking lot. One of them was Mikashia Hardiman, who is 18 years old and pregnant with her first child. Hardiman had just had her 20-week anatomy scan, and learned that she has a shortened cervix, which means her mother now has to drive her to Memphis to see a specialist.

Jessica Ray, 36, was 13 weeks pregnant with her third child. Three years ago, when she suddenly went into labor with her second child at 33 weeks, she drove herself 45 minutes to the hospital and delivered less than half an hour after she arrived. Ray knows the travel ordeals ahead of her: because she had preeclampsia with her first two pregnancies, she'll have to go see the specialist in Memphis each month. "You have to take off work and make sure somebody's getting your kids," Ray says.

Balthrop, who has three kids of her own, has long considered moving to a different region with a better education system. "I feel like I can't," she says. "I would be letting so many people down."

But the clinic is under serious financial strain. Between overhead, malpractice insurance, the increasing costs of goods and services, and decreasing insurance reimbursements, Balthrop and her colleagues can barely afford to keep Clarksdale Woman's open. They're considering selling the practice to a hospital 30 miles away. If that happened, Balthrop says, babies would no longer be delivered in Clarksdale, a city of less than 15,000. Some of her patients would have to leave the Delta—possibly driving an hour or more—to get even the most basic maternity care.

For the patients who already struggle to make it to Clarksdale, that would spell disaster. "They just wouldn't get care until they show up for delivery at the hospital," says Shoun, the administrative assistant. "Imagine if we weren't here. Where would they go?"

Ashley started feeling contractions on a Saturday afternoon when she was 39 weeks pregnant. She called Regina, who came home from work, and together they started timing them. They arrived at the hospital around 8 p.m. that night. An exam revealed Ashley was already six centimeters dilated. Her water broke soon after, and she got an epidural. She delivered Peanut within five hours. Ashley describes the birth in one word: "Painful."

For Regina, the arrival of her first grandchild has not eased the pain of watching what her daughter has endured. "This situation hurts the most because it was an innocent child doing what children do, playing outside, and it was my child," Regina says. "It still hurts, and is going to always hurt."

Ashley doesn't know anybody else who has a baby. She doesn't want her three friends at school to find out that she has one now. Regina is working on an arrangement with the school so Ashley can start seventh grade from home until she's ready to go back in person. Relatives will watch Peanut while Regina is at work. Is there anything about motherhood that Ashley is excited about? She twists her mouth, shrugs, and says nothing. Is there anything Ashley wants to say to other girls? "Be careful when you go outside," she says. "And stay safe."

There is only one moment when Ashley smiles a little, and it's when she describes the nurses she met in the doctors' office and delivery room. One of them, she remembers, was "nice" and "cool." She has decided that when she grows up, she wants to be a nurse too. "To help people," she says. For a second, she looks like any other soon-to-be seventh grader sharing her childhood dream. Then Peanut stirs in his car seat. Regina says he needs to be fed. Ashley's face goes blank again. She is a mother now.

[Maladict]

What a nightmare.