Should politicians support ignoring court orders?: Rep. Alexandria Ocasio-Cortez, or AOC, said back in April that the White House should ignore the recent court ruling that effectively banned the abortion drug mifepristone.
Will this set a bad precedent?
What We Know
Earlier in April, U.S. District Judge Matthew J. Kacsmaryk of Texas ordered a pause in the U.S. approval of the abortion pill known as mifepristone.
It was widely reported as an unprecedented move by a judge to overrule the Food and Drug Administration on approval of a drug.
The drug had been approved in 2000, with the FDA relaxing some distribution restrictions in 2016.
The Justice Department appealed the ruling soon after, with the ruling put on pause to allow opponents to appeal. The DOJ, per the New York Times, had sought to “clarify what the F.D.A. would be obligated to do if the Texas ruling took effect — essentially seeking instructions from the judge that would allow the agency to continue to keep mifepristone available, at least while the Texas case works its way through the courts.”
In April as well, a federal appeals court narrowed the ruling, preserving access to the pill but reducing the period of pregnancy during which it can be used and disallowing it to be sent by mail.
The second ruling was issued by a 2-1 vote, with the two judges in the majority both Donald Trump appointees, and the dissenting judge a George W. Bush appointee.
The matter may now go to the U.S. Supreme Court. And while the high court has a conservative majority, legal experts quoted by the New York Times said that the Supreme Court might be reluctant to affirm Kacsmaryk’s ruling.
“If you’re a justice looking for a case in which to undermine the administrative state, this is not a particularly elegant one,” Mary Ziegler, a law professor and historian at the University of California, Davis, told the Times. “Everything about this case makes it an imperfect vehicle, except for the fact that it’s about abortion and the administrative state. This is boundary testing.”
AOC Has Thoughts
Meanwhile, there have been some calls for the Biden Administration, and state officials in Democratic-controlled states, to merely ignore the ruling.
Appearing on CNN’s “State of the Union” talk show back in April, Rep. Alexandria Ocasio-Cortez (D-NY) (or AOC) called the ruling “a mockery of our democracy and a mockery of our law,” as well as “an extreme abuse of power. It is an extraordinary example of judicial overreach.”
She also said that because “the executive branch has an enforcement discretion,” the Biden Administration “should ignore this ruling.” She pointed to Sen. Ron Wyden (D-OR), who had made similar comments previously.
“The FDA, doctors, and pharmacies can and must go about their jobs like nothing has changed and keep mifepristone accessible to women across America,” Sen. Wyden said, per USA Today. “If they don’t, the consequences of banning the most common method of abortion in every single state will be devastating.”
Biden Goes for an Appeal
The question is somewhat moot, at least in this case, since the Biden Administration does not appear to have taken their advice, instead opting to appeal the ruling.
One expert quoted by the newspaper, Jessica Waters, professor of reproductive rights law at American University, said the executive branch would have a case for doing such a thing.
“The FDA in the executive branch, they have enforcement authority. So they get to decide whether they would, for example, go after someone who was dispensing or manufacturing mifepristone,” Waters said. But she added that doing so would be “politically risky,” and also set a precedent for the executive branch to ignore unfavorable court rulings in the future.
However, AOC did state that the Trump Administration had set a similar precedent when they ignored a judicial ruling related to the the Deferred Action for Childhood Arrival program, rejecting new applications to that program following a ruling by the U.S. Supreme Court in July of 2020.
Expertise and Experience:
Stephen Silver is a Senior Editor for 19FortyFive. He is an award-winning journalist, essayist and film critic, who is also a contributor to the Philadelphia Inquirer, the Jewish Telegraphic Agency, Broad Street Review and Splice Today. The co-founder of the Philadelphia Film Critics Circle, Stephen lives in suburban Philadelphia with his wife and two sons. Follow him on Twitter at @StephenSilver.
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