The US Supreme Court is set to rule on Wednesday on an abortion pill widely used in the country, about which a federal judge has caused confusion by wanting to suspend its validity. It was seized of a complaint from a coalition of conservatives against the FDA (Food and Drug Administration). According to Mary Ziegler, professor of legal history at the University of California at Davis, author of several authoritative books on the American debate on abortion, the decision could show that the reversal of jurisprudence operated in June 2022 by the Supreme Court on abortion was misleading.
How is it that a single judge in the United States can question a national measure such as the authorization of a drug on the market since 2000?
Federal judges are supposed to provide what is called an “equitable remedy.” It can be an order for damages; a judgment declaring that such and such a law is not constitutional; or an injunction [un ordre] which obliges or prevents the parties from doing something or which freezes the situation until the dispute is settled. Normally, their decisions only apply to litigants within their jurisdiction.
Since 2015, there has been an increase in the number of judges issuing national injunctions, that is to say orders that apply anywhere in the United States. This is what happens in the case of mifepristone. The judge [Matthew] Kacsmaryk, of Amarillo, Texas, and then the Fifth Circuit Court of Appeals, issued injunctions that would apply nationwide. In theory, judges have the authority to do this, but in history it hasn’t happened often. This increase is probably due to political polarization in the United States. We see fewer regulations emanating from Congress or state assemblies. The courts take on this role of “policy making” in a way [élaboration des politiques] which they should not be responsible for.
What gives them this authority?
Judges derive their powers from Article 3 of the Constitution. This simply defines the judiciary. It does not say exactly what the remedial powers of the federal courts are, but it does not limit them. In theory, one could argue that if there are no constitutional safeguards, the federal courts can do what they want with their remedial power. Is it legal or not? It’s under debate. I think there should be a wider discussion about whether national injunctions are a good idea or not.
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