Christian Fascist Matthew Kacsmaryk’s Coming Ruling

and the Need to Abandon Liberal Surrender and Complicity

Sometimes it is hard to know who is worse: the Christian white nationalist neofascists who keep pushing the nation further right or the hollow and passive resistance of the fake-opposition Weimar Democrats who keep accommodating the ever more mainstreamed far right.

But we don’t have to choose.  The fascisation of US politics and policy reflects, among other things, a symbiotic, even “co-dependent” dance between the Republikaner right and those aligned with the not-so leftmost of the two dominant capitalist parties – the dismal Dems.

Take the right-wing women-hating war on abortion rights in the United States over the past year and a half.  It was clear as day that the nation’s Christian fascist Supreme Court was going to deep-six Roe v. Wade – undo women’s constitutional right to an abortion, that is  – once it agreed to hear the Dobbs v. Jackson decision in December of 2021.

Rise Up for Abortion Rights (RU4AR) was formed by three leading US feminists – the legenday abortion rights pioneer Merle Hoffman, Sunsara Taylor, and Lori Sokol – in the wake of Dobbs’ oral arguments. Its leaders knew very well what was coming the following summer: the end of Roe at the hands of a far-right court crafted precisely to bring that about, with devastating consequences for millions of women and girls.  RU4AR called for mass action in the nation’s streets and public squares to send an unambiguous message to the Court and the national political class in general: the attempted re-imposition of the female bondage of forced motherhood would mean the widespread disruption of business and governance as usual and the de-legitimization of the nation’s judicial system and political order. The only way forward, RU4AR argued, was to form and unleash a powerful women’s social movement modelled on successful Latin American abortion rights struggles – a movement that relied on mass pressure and fury in the streets, not lame electoral “solutions” and the promises and pledges of politicians.

From the start, RU4AR warned women and their allies that the anti-feminist Christian fascists of Amerika aimed for a national abortion ban. The doctrinaire fetal personhood theocrats and would not be content to crush women’s reproductive freedom only in “red “(try brown) – Republican-controlled – states, RU4AR insisted.

RU4AR’s call for mass action fell on deaf ears in most of what passes for a women’s reproductive rights movement in the U.S.

Four reasons were given by the “choice” establishment and liberal and “left” “repro” activists for not getting serious about the coming assault and taking to the streets in mass and militant fashion:

1. “They wouldn’t actually tear up a half-century constitutional right that has opened up new freedoms and opportunities for millions of  US females. They wouldn’t dare!”

2. “If they kill Roe, we’ll make them pay at the ballot box and get women’s right to an abortion back someday through voting and legislation.”

3.  “We’ve still got the right to terminate unwanted pregnancies  in the blue (Democratic Party-run), pro-abortion states.  The Dobbs decision returns abortion policy to state jurisdictions. We can play states’ rights to women’s advantage. Abortion is still legal in many states, and we’ll save women’s right to an abortion by ramping up the capacity of blue/Democratic states to provide services to women and girls stuck in red anti-abortion states.”

4. “It won’t matter if they kill Roe because we’ve got medical abortion pills available on the market.”

All these arguments have been exposed as surrenders to Christian fascism and even as complicity in the assault on women.  The first one – “they won’t actually do that” – was of course ridiculous. “They” – the women-hating “fetal personhood” right – had every intention of acting on their ability to reverse Roe once Donald Trump and Mitch McConnell had assembled the arch-reactionary Alito-Thomas-Gorsuch-Kavanaugh-Coney-Barrett Supreme Court.  This vile purpose was signaled not just in the oral arguments that took place in December 2021 but in the High Handmaid Court’s decision to hear the Roe-breaking Dobbs case in the first place.

The second argument for staying off the streets and out of the public squares – voting as the solution – was also wrongheaded in ways that amounted to effective (if unintentional) collusion with the right. There was an anti-Dobbs backlash that helped contain the Democrats’ damage a bit in the mid-terms but it wasn’t great enough for the dismal Dems to keep control of the US House of Representatives.  Even if they had preserved their House majority, moreover, no bill “codifying Roe as the law of the land” would ever get past the essentially half-Republi-fascist and badly mal-apportioned, right-tilted US Senate, where (under the reactionary filibuster rule that Democrats have long refused to challenge) 60 of 100 votes are required to pass such a measure. If enough Republican Senators magically backed a Roe-codifying bill for it to become law, moreover, the legislation would likely end up being shot down by the Supreme Court.  Like the Senate, the presidential Electoral College System, the presidential primary system and the nation’s gerrymandered state legislatures and US House, the lifetime-appointed Trump and McConnell-made Court obviously stands far to the right of the US populace on abortion and numerous other issues.

The de facto liberal complicity got worse right after Dobbs. While “pro-abortion” Democrats and the liberal Dem-captive “choice” establishment cynically licked their chops for an electoral “Roevember” in the 2022 midterm elections, they failed to demand a basic immediate thing from Biden – something that required no get-out-the-vote efforts. They failed to demand that he respond to the Dobbs ruling by issuing an executive order declaring the war on abortion a public health emergency and providing safe and legal abortion services on federal lands across the entire country, including red states that moved ban or severely restrict abortion under the terrible ruling. (RU4AR’s Sunsara Taylor rightly demanded precisely that outside the Court literally within seconds of the Dobbs decision being made public. I was there.)   

This failure was shockingly accompanied by a slanderous COINTELPRO-like attack on RU4AR by a number of liberal and even some “left”-identified journalists and “repro” organizations.  This scurrilous assault included false, absurd, and indeed libelous accusations of anti-transgende-ism and financial corruption alongside neo-McCarthyite charges of being a “front group” for a “communist cult.”

What about surrender narratives three and four –the blue state “abortion sanctuaries” and medical abortion pill as salvations that supposedly make a mass movement for “abortion on demand without apology” (RU4AR’s slogan) unnecessary?  Here, too, it’s not a pretty story. The walls are closing in on those escape-from-mass struggle narratives as well.  “Since Dobbs,” Judith Levine writes at The Intercept, “the reproductive justice movement has been transformed into a massive disaster relief agency: delivering pills to pregnant people in red states; transporting, housing, providing child-care, and paying medical bills for those who travel to blue states for surgical abortions; and raising charitable donations to fund it all.” 

That is unsustainable and has already failed to prevent a countless number of terrible outcomes across the country. As Jessica Valenti notes, “pregnant women are being left bleeding for days. Raped girls are being denied treatment. Doctors [are being] forced to choose between giving patients adequate care or going to jail! Twenty state Attorneys General [have] threatened retail pharmacies to keep [abortion] medication out of their states, even though these medicines are standard treatment for miscarriages.” Millions of women and their allies have become what Levine calls “potential felons…for  doing nothing more than minding their own bodies’ business” while “doctors face imprisonment for practicing medicine.” Red state women-haters are hard at work devising different insidious ways to criminalize any and all efforts to work around the new forced birth terrorism. (Valenti’s remarkable Substack, titled “Abortion Every Day,” is an indispensable daily guide to these escalating horrors.)

The direct service mobilization is important but inadequate. As Levine notes, “widely scattered thousand-points-of-light volunteer brigade serving those who can find it — and that is dogged by surveillance and threatened by criminal charges as serious as homicide — cannot replace what we need and deserve: a well-resourced welfare state that provides a full range of affordable, high-quality reproductive health care to everyone. Nor should we get hooked on the adventure of rescue….for now, we have a maze of volunteer services, under and aboveground. It can be confusing for activists and, for abortion-seekers in crisis, overwhelming.

The underground rescue operation many blue state providers and activists are carrying out has noble intentions and, no doubt, many real-world accomplishments for formerly pregnant women, girls, and transgender people.  In the absence of a serious mass and militant national movement for safe and legal abortion nationwide, however, it cannot but leave millions of women and most especially poor and nonwhite women in the lurch.

“When the Supreme Court overturned women's fundamental right to abortion last year,” RU4AR’s Chicago chapter notes, “they claimed they would leave the matter up to the states. This was never legitimate because a woman's right to decide for herself when and whether to have a child is fundamental to her very humanity. Denying this right anywhere is an assault on women's status as full human beings everywhere.”  At the same and worse, as RU4AR warned from its founding, “it was never the intent of the Christian fascists to simply leave abortion rights ‘up to the states.’” It has always been their goal to ban abortion on a national scale.

A major step in that terrible direction is now underway. Any day now, Matthew Kacsmaryk, a handpicked Christian fascist federal judge in Texas is going to prohibit the safe and effective abortion pill mifepristone nationwide.  Kacsmaryk is a far-right judge for whom women-hating Christian fascists went “shopping” last year. His coming order is based on thoroughly false allegations about mifepristone’s safety and defies the six-year statute of limitations on challenges to FDA decisions. It ignores the anti-abortion plaintiffs’ lack of standing and flouts the Supreme Court’s decision in Dobbs returning abortion law to the states.

Anyone who doubts that Kacsmaryk is going to rule against mifepristone should read this sketch of his far-right biography: Devan Cole, “Matthew Kacsmaryk, the Trump-Appointed Judge Overseeing the Blockbuster Medication Abortion Lawsuit,” CNN, March 15, 2023. By all reports, his questions in the case’s oral arguments yesterday indicate that he will rule as expected.

The ruling will kill two birds with one judicial-fascist stone: poof goes the blue state sanctuary argument for surrender to the national war on abortion and down goes the notion that medical abortion pills will save the day. 

Kacsmaryk’s coming order will make it clearer than ever before that, as RU4AR says “Red state, blue state, we can’t hide, the war on abortion is nation-wide!…Gee, it’s great your state is blue, the war on women’s still coming for you!”

Look for two new surrender-from-militant-political-struggle-and-demand rationales in the wake of Kacsmaryk’s dark order:  “We still have the second abortion pill, misoprostol,” which can induce abortions without the prior use of mifepristone, and “we’ll’ form underground illegal guerilla networks to make abortion pills and services available.”  Here are two key problems with the first argument: abortions with misoprostol alone are far less safe, comfortable, and effective; there is no reason to think that the Christian fascists won’t use to the federal courts to outlaw the second pill too (why on earth wouldn’t the fetal personhood theocrats do precisely that?).  The second argument accommodates the right-wing assault on women’s reproductive rights, accepting it as a fact of life instead of something to be challenged and overthrown and that is not even remotely an adequate substitute for what Levine righty says is required: “a well-resourced welfare state that provides a full range of affordable, high-quality reproductive health care to everything.”

At what point does the dam of pathetic subservience to the Hollow Resistance and “inauthentic opposition” Democrats and their neoliberal-centrist president break? Learning from its failure to pressure Biden to make abortion legal and safe nationwide after Dobbs, the “choice” movement ought to embrace US Senator Ron Widen’s (D-OR) call for Biden to simply ignore[1] Kacsmaryk’s ruling and keep the drug on the market.  At the very least, Biden could force the fetal fascists to take the matter all the way up to the Supreme Court, creating an interval of time for abortion rights activists to mobilize millions to call for “Abortion on Demand Without Apology” since “Without This Basic Right Women Can’ be Free” (RU4AR slogans).

The right wing jumped all over Widen’s proposal, damning it as a “radical Left” assault on “the rule of law,” as if Kacsmaryk’s ruling isn’t a radical right assault on the existing legal framework (see above). 

What about the nation’s Dem-captive  “choice” movement? I’ll let Levine answer:

“Meanwhile, from Wyden’s pro-choice allies, nothing. No congressional Democrat amplified his demand. The White House did not respond. And where were the feminists?”

“Otherwise occupied.”[2] 

Occupied in insufficient “disaster relief” and “rescue” while the ship of women’s basic reproductive freedoms sinks after colliding with the women-hating iceberg of a Christian fascist minority that is absurdly overrepresented in US politics and policy on this and numerous other and related issues.

Which raises the issue of revolution and governance.  

Notes

1. Some important legal and political reflection from Susan Matthews in Slate yesterday: “More important than the terrible arguments being proffered here is the technical question of why a single judge in Texas might even have the right to overrule the FDA on a question that is ostensibly a medical one. As David S. Cohen, Greer Donley, and Rachel Rebouché pointed out in Slate, he really can’t. Like any judge, Judge Kacsmaryk has no direct authority to order the FDA to withdraw the drug’s approval—instead, ‘he should only be able to order the agency to start the congressionally mandated process, which involves public hearings and new agency deliberations. This could take months or years, with no guarantee of the result.’ If he does rule against the drug’s approval, the FDA ought to be able to defer to the very precise congressionally mandated guidelines for how it participates in the process. The agency could also pretty easily circumnavigate the restriction by noting that they have made an exception for enforcing the use of this drug due to its safety profile, allowing it to continue to be prescribed around the country. In the meantime, they can appeal the decision up through an appeals court... If Judge Kacsmaryk does rule against mifepristone, and if the FDA responds by telling people it will effectively not enforce that ruling on the judge’s behalf, it will be a real situation of conflicting orders from two opposing powerful entities. So far, when this has happened in the situations surrounding abortion, the threat being scared up by anti-abortion forces has won out.”

2. Some of my readers may appreciate a dark irony: Levine’s excellent Intercept article ends with her advancing the RU4AR slogan “abortion on demand and without apology” and saying what RU4AR has said from the start: “we …have to get back to the streets — to build power, mobilize the grassroots, and make a lot of loud, public noise.” Right on.  The irony is this: The Intercept launched possibly the most vile and disgusting of all the neo-McCarthyite liberal-left COINTELPRO-like attacks directed against RU4AR last summer. Read that attack, by Robert Mackey, here. I responded to Mack and other attackers in this essay: “Why is ‘the Left’ Red-Baiting Rise up for Abortion Rights on the Eve of Fascist Destruction?,” CounterPunch, August 1, 2022.