Two News Events: Abortion Pills and Legislators Expelled

I won't say they are the only thing of special note, but two big things happened in the past week. 

Tennesse and Republican Government

First, the Tennessee House expelled two young black legislators for their roles in a gun control protest. A more veteran white woman legislator missed being expelled by one vote.  This is a supermajority Republican (modern-day version) legislature on steroids.  

I think the veteran status meant something, but sorry, any concern this was racism plain and simple is earned.  Also, the two might be back soon. At least one, maybe both, can be temporarily reappointed and then it will be left to voters to decide in a special election. This happened historically when legislators were expelled or resigned under pressure.  

There is a mixture of racism, attacking free speech and protest, and unhinged partisanship here.  This includes critics arguing peaceful protests here were like or worse than 1/6/21.  Finally, expelling representatives in this fashion might even be a Guarantee Clause violation.

This is one of those moments that should not just be labeled "just another thing."  It is a next-level thing and should be labeled as such. More cases might be on the horizon, this serving as a "precedent."

ETA: Both were reinstated by their localities. There will now be a special election.  They both plan to run.  Self-own, Republicans. 

Abortion Pill Rulings

Judge Kacsmaryk (who subtweeted Steve Vladeck for criticizing him, getting schooled in a Slate piece in response) was expected to strike down the usage of the abortion pill mifepristone.  Some conservatives beforehand flagged how the case was weak for various reasons. As one noted:

The plaintiffs’ lawsuit is extremely weak and deserves to lose. I believe it will.

Well, if it does, it won't at this level.  

[ETA: He has a strong criticism up now but I think is a tad too optimistic about how much this is an outlier, especially in the 5CA and about abortion overall.  And, you can be against abortion.  

But, strong advocacy, especially legal advocacy, is likely at some point to influence your judging. People are nominated for their backgrounds for a reason here.  It isn't merely some big academic thought experiment. Anyway, not going to get people to trust here if such people use their bench for opinions like this.]

Two Strict Scrutiny Podcast co-hosts have takedowns, each strongly attacking it using their own styles. Leah Litman at Slate in part attacked his biased rhetoric:

There are several ways the opinion is lawless, as Mark Stern has already pointed out. Start with the tone. Footnote 1 of the opinion announces that it is “unscientific” to use the term “fetus,” and so the great scientist (or judge, it’s hard to keep track) Matthew Kacsmaryk prefers the phrases “unborn child” or “unborn human.” (He cites a philosopher and political scientist for back-up.) Footnote 2 of the opinion then recycles personal-jet-flying, superyacht-riding world traveler Clarence Thomas’s efforts to falsely equate support for abortion rights with eugenics.

Kate Shaw (who has a pending law article with the third host about the claim Dobbs was "democratic" in nature) brings in her restrained anger style at NYT.  To touch upon that:

The drug’s long-settled approval is the result of a functioning democratic process: an accountable federal agency, exercising authority delegated to it by Congress, conducted a rigorous review process — one recognized worldwide as the gold standard. The F.D.A. concluded that mifepristone is incredibly safe, and independent research has since confirmed that it is safer, in fact, than Tylenol, penicillin and Viagra.

Prof. Shaw includes various strategic moves that the Biden Administration (the president and vice president both strongly criticized the ruling) can take besides (as they did) appeal.  The case is made more complicated because a competing opinion came down about the same time on Friday. The op-ed is an important reminder that a bad ruling does not necessarily mean that one judge simply can hold up the government.  

(More links. The Biden Administration's argument a law against abortion products being mailed should be interpreted in a limited fashion. Also, an article on New York's response to the ruling.)  

This ruling is again something that should not be treated as just more of the same.  This is different since unlike expelling legislators we have many more horrible lower-court opinions.  And, it underlines the need to update how we handle nationwide injections, judge shopping, and other matters.  But, even as such opinions go, this one is a doozy.  

Both news stories do touch upon wider things that have been taken "to eleven" (I would worry about this reference if anyone reads my blog) in these cases.  It is fine to talk about that.  Michelle Goldberg, who wrote a book about reproductive policy some years back, talks about the Comstock Act reborn as a whole.  Susan Collins "concerned" with this one opinion won't do it.  

As Biden notes:

But let’s be clear – the only way to stop those who are committed to taking away women’s rights and freedoms in every state is to elect a Congress who will pass a law restoring Roe versus Wade.  

We can note the particularly horrible nature of these two events while still noting the wider problem.  

ETA: This puff piece (curious how personal it is when he isn't supposed to be letting his personal experiences influence his rulings) on the conservative judge won't help NYT critics.  

I looked up the writer, and she's a new member of the SCOTUS coverage team with some real liberal crime coverage cred.  It's a depressing early effort.