After Finding That Voters Hate Their Abortion Policies, The GOP Floats A New Plan: Nullification!

For decades, Republicans vowed that, if voters would just put them in power, they'd appoint judges to overturn Roe v. Wade and end the right to abortion in America. And on that score, the GOP has kept its promises. First there was the Dobbs decision, jettisoning generations of legal precedent on grounds of because we can. Then Republican state legislatures raced to enact a slew of draconian abortion laws. And now, if Judge Matthew Kacsmaryk's effective nationwide ban of the common abortifacient drug mifepristone is allowed to stand, abortion will become illegal and inaccessible in large swathes of the United States.

The problem is that the country where the GOP first vowed to end abortion no longer exists. Sixty-one percent of Americans support the right to an abortion in all or most cases, while just 37 percent favor a blanket ban. The Dobbs decision was wildly unpopular, and only served to lay waste to the remaining shreds of the Supreme Court's claim to be a legitimate body, merely calling "balls and strikes." The decision was also poison in the midterms, and continues to be an albatross around GOP necks.

A Politico story over the weekend described abortion as "Republican quicksand," noting that it appears to have been a major factor in the Wisconsin judicial race last week, where Democrat Janet Protasiewicz trounced Republican Dan Kelly to flip the balance of the state's highest court. This virtually guarantees that Wisconsin's aggressively gerrymandered electoral maps will be replaced, cutting into the GOP's congressional margin both in Wisconsin and nationwide. Indeed, 2024 was already looking to be a rough year for Republicans, as Axios's Josh Kraushaar wrote yesterday, citing the twin scourges of Dobbs and Trump.

The Wall Street Journal's famously reactionary editorial board described the Kacsmaryk decision as "a political gift to Democrats" whom they characterized as "gleefully furious." That same board writes with a straight face that "The Justices in Dobbs sought to extricate themselves from regulating abortion, but partisans on both sides don't want to let them." Which is ... a take.

In reality, the GOP's policies are toxic to voters, particularly those under 30. So Republicans have come up with a novel plan to deal with the fact that they've now gotten what they wanted and don't like the blowback. What if, the Biden administration simply refuses to follow Judge Kacsmaryk's order?

"It's not up to us to decide as legislators or even, you know, as the court system whether this is the right drug to use or not," Rep. Nancy Mace told CNN's Kaitlan Collins on Monday.

"I agree with ignoring it at this point," she went on, putting herself in an odd alliance with Rep. Alexandria Ocasio-Cortez, who suggested that the Biden administration use its executive power to thwart the judge's ruling.

Republican @NancyMace says she believes the FDA should ignore the Texas judge's ruling. "This is an FDA approved drug. Whether you agree with its usage or not, that's not your decision. That is the FDA's decision." pic.twitter.com/wGJBunurcL

-- Kaitlan Collins (@kaitlancollins) April 10, 2023

Nullification! All the cool kids are doin' it!

Mace mentioned Judge Kacsmaryk's reliance on the Comstock Act for his holding that it's illegal to mail abortifacients, and points to the competing holding from Judge Thomas Rice in the Eastern District of Washington, in which he instructed the FDA to make no changes to the distribution protocol for mifepristone in the 17 states and the District of Columbia which sued the FDA.

"This is an issue that Republicans have been largely on the wrong side of," Mace went on. "We have, over the last nine months, not shown compassion toward women, and this is one of those issues that I've tried to lead on as someone who's pro-life and just have some common sense."

But the congresswoman failed to mention which of her previous anti-choice votes she would now walk back. Would it be the six-week abortion ban she voted for as a South Carolina state legislator that made it a felony for a doctor to perform an abortion? Or her support for the Born-Alive Abortion Survivors Protection Act, a bill that would criminalize doctors for failing to provide medical care in the extremely rare event that a fetus survived an attempted abortion.

Meanwhile, the FDA has appealed Judge Kacsmaryk's order, which puts Mace and Democrats in the odd position of praying that the Fifth Circuit will bail them out of this horrible situation in which the most widely used method of medication abortion will be unavailable starting Friday.

Not so much with the glee, really. But as for the fury, well ... the WSJ got that one exactly right.

Liz Dye lives in Baltimore where she writes about law and politics and appears on the Opening Arguments podcast.