Abortion Pill Case is About the Court Stripping Voters of Democratic Power

The legal mumbo jumbo is just a cover for the Court making a power grab to increase its own dictatorial power

“Textualism”, “originalism”, “major questions doctrine”: all these theoretical terms about Court interpretation of statutes are legal wordplay, which Cout conservatives have shown time and again they will dispense with when they want the decision to go a different way.

But claiming some theoretical constitutional cover is the way the Court makes overturning the administrative decision of an elected President or that of Congress seem like something other than the dictatorship of a partisan Court majority with lifetime tenure.

Liberals have given into the temptation in the past of letting Court decisions second-guess democratic ones, but the major liberal decisions in that vein like Brown v. Board and Roe v. Wade were written by Republican-appointed Justices ( Earl Warren appointed by Eisenhower in the case of Brown, Harry Blackmun appointed by Nixon in the case of Roe) with broad bipartisan majorites on the Court in those decisions. Never in U.S. history has a strictly partisan majority on the Supreme Court made so many decisions overturning the decisions of Congressional majorities and Presidents elected by the voters.

In the case of the abortion pill decision today, the question is relatively straightforward. Did the Federal Drug Administration ignore the law when it approved its use in 2021 and expanded access to the drug in 2016 and 2021?

In this case, the petitioners want the Court to substitute its medical expertise (ie. nonexistent expertise) for the expertise of FDA scientists in approving use of the drug. Even if one can argue that medical judgments are themselves subject to bias and interpretation, the question is whether you let the bias of unelected judges without medical expertise win out over the medical expertise of the FDA appointed by a democratically-elected President.

To give a flavor of what the petitioners are asking the Court to do, here is what a filing before the Court argues the FDA did wrong:

FDA’s 2021 decision to remove the initial in-person visit [in order to purchase the drug] was arbitrary and capricious. First, FDA relied on adverse event data from FAERS. But FDA concedes elsewhere that FAERS data cannot be used to estimate the incidence of adverse events or indicate the safety profile of a drug. Equally problematic, FDA did not recognize that it had years before abandoned the requirement that mifepristone prescribers report nonfatal adverse events.

The stilted medical interpretations are interspersed with stilted legal interpretations throughout the brief. I’m quite sure the majority of the Court - possibly all nine Justices - had never heard of FAERS or been familiar with the medical debates involved. And I doubt any of the Justices received a medical degree in the time they were considering the matter. But they may well decide they have the expertise necessary to evaluate if the FDA properly reviewed FAERS data.

In the past, the Court had settled into a relatively straightforward approach to such questions called “Chevron deference”, so-named for a unanimous decision in the case Chevron v. the Natural Resources Defense Council in 1984. Then, the Court said they would defer to decisions of executive branches in interpreting the law as long as the interpretation was “reasonable”- even if the Justices themselves might have come to a different interpretation themselves.

That Chevron decision in 1984 recognized that such interpretations will likely reflect the partisan preferences of the President, which the Court recognized was proper where statutes involve ambiguity due to scientific expertise and ambiguous language in Congressional statutes. As the decision stated:

Judges are not experts in the field, and are not part of either political branch of the Government. Courts must, in some cases, reconcile competing political interests, but not on the basis of the judges' personal policy preferences. In contrast, an agency to which Congress has delegated policymaking responsibilities may, within the limits of that delegation, properly rely upon the incumbent administration's views of wise policy to inform its judgments. While agencies are not directly accountable to the people, the Chief Executive is, and it is entirely appropriate for this political branch of the Government to make such policy choices -- resolving the competing interests which Congress itself either inadvertently did not resolve, or intentionally left to be resolved by the

This is a clear statement by the Court then that courts deferring to agency decisions is how we recognize the right of voters to exercise their power in deciding how to interpret enacted statutes. Electing Obama in 2012 and electing Biden in 2020 resulted in the 2016 regulations and the 2021 regulations at issue in the current abortion pill decision. Unless the Court can demonstrate completely irrational decision-making by the FDA, the Supreme Court second-guessing the FDA in this case is just overthrowing the 2012 and 2021 elections to force through a MAGA interpretation of the law by unelected judges.

And to be clear, this Court has been attacking the democratic principles of court deference contained in Chevron in multiple cases, as they have struck down regulations by the Biden administration to curb Covid spread, reduce student debt, regulate wetlands and a host of others. Chevron deference has largely been killed in all but name, but in an upcoming case, the MAGA Republican majority on the Court is likely to officially overrule Chevron and formally declare its partisan judgement superior to that of the elected executive branch.

Today’s abortion pill decision oral arguments will involve a lot of legal and medical verbiage but it’s all wordplay. The case is about political power - the power of the Court versus the power of voters during Presidential elections.