Embracing Defeat

Jim Watson/AFP/Getty Images

Joe Biden addressing reporters at Raleigh-Durham International Airport after visiting a semiconductor manufacturing company, Morrisville, North Carolina, March 28, 2023

Until last month Americans enjoyed guaranteed access to an array of crucial preventive medical services, including screenings for breast cancer, cervical cancer, colorectal cancer, and lung cancer; mental health screenings for children and adolescents; genetic testing and counseling for women at risk of hereditary cancers; fluoride varnish for the teeth of young children; breastfeeding supplies, nicotine gum, and antibody tests for pregnant women; prophylactic drugs for those at risk of HIV; statins for heart disease; counseling for the elderly to prevent falls; counseling for adolescents about unhealthy sexual behavior; and information about the abuse of alcohol and tobacco. There were more screenings—for Hepatitis B and C, osteoporosis, postnatal depression, obesity in children, syphilis and other STDs, abdominal aortic aneurysm, intimate partner violence, diabetes and prediabetes, preeclampsia. All of these services were available gratis. Nearly half of all Americans made use of them.

This state of affairs was produced by the Affordable Care Act (ACA), which compelled insurance companies to cover medical care that was recommended by the US Preventive Services Task Force. On March 30, a week after the ACA’s tenth anniversary, a Texas federal judge, Reed O’Connor, put a stop to all that. O’Connor, who has a history of attacking the ACA without a proper jurisprudential basis, held that the Preventive Services Task Force was an unlawful agency and its recommendations could no longer be followed by the US government. The decision, and the reasoning used to support it, prompted a storm of outrage.

Days later, Judge Matthew Kacsmaryk, also of the Texas Northern District federal bench, invalidated the Food and Drug Administration’s approval (from 2000!) of the hugely popular and trusted medical abortion pill mifepristone. (Access to mifepristone was expanded by the FDA after 2015. Abortion medication pills now account for more than half of US abortions.) A second storm of outrage followed, with legal commentators again falling over one another to explain how shamelessly dishonest the court’s decision was.

The government took both cases to the US Court of Appeals for the Fifth Circuit, which is notorious for unprincipled right-wing extremism. The Fifth Circuit has yet to hear the preventive services appeal. It has heard the mifepristone case, on a preliminary basis. The two judges in the majority, Trump appointees, restored mifepristone’s status as an approved drug but imposed pre-2016 restrictions on its use. Henceforth mifepristone could only be used in the first forty-nine (instead of seventy) days of gestation; would only be available in person, after three office visits to the doctor; and could no longer be sent by mail to states where abortion is illegal. A third storm of outrage followed: the court, it was said, had usurped the scientific function of the FDA, ignored longstanding rules relating to standing and timeliness, and deployed tendentious ideological language (including “unborn child” for fetus) that laid the conceptual ground for a nationwide ban on abortion. On Friday evening, the Supreme Court stayed the Fifth Circuit’s order pending full hearing of the matter in New Orleans. It seems likely that both the mifepristone case and the preventive services case will eventually be decided in the Supreme Court—which is itself notorious for unprincipled right-wing extremism.


Legal systems have always had “rogue” judges, in the sense of idiosyncratic solo actors whose errors and misdeeds are subject to correction by appellate judges of integrity and good sense. Judges O’Connor and Kacsmaryk are not rogue actors. They are members of a network of judicial politicians whose careers are sponsored by the Federalist Society and whose primary loyalty is to the Republican Party and its far-right, Christianist agenda. This network also dominates the Fifth Circuit and the Supreme Court. Its members’ modus operandi is to accept legal challenges brought by extremist interest groups with dubious legal standing and concoct whatever jurisprudence is needed to achieve their aims. In effect, there exists a political litigation pipeline, running from Amarillo to New Orleans to Washington, that is staffed by corrupt judges ready and willing to advance the causes of the Republican Party and its donors.

This situation turns democracy on its head, as it is designed to. Americans can vote Democrats into power, but Democratic legislative or executive actions—on climate change, say, or immigration, or wealth inequality, or strengthening the rights of women or Dreamers or LGBTQ Americans or trade unions—are subject to a de facto veto by bad-faith Republican district judges whose ostensibly de jure actions are reviewable by bad-faith appellate judges whose actions are reviewable by a Supreme Court with a supermajority of bad-faith judges whose decisions cannot be challenged by another branch of government. It is the system that has gone rogue.

The Texas cases form part of an extraordinary wave of GOP belligerence. This month Republicans passed legislation that all but eliminates legal abortion in Florida, expelled two Democrats from the Tennessee House for an act of peaceful protest, began to roll back child labor protections in Iowa, and closed ranks behind Justice Clarence Thomas in the face of revelations that for decades he has secretly benefited from the largesse of a Republican megadonor and activist named Harlan Crow.


Preserving constitutional democracy from Republican extremism, ensuring access to affordable health care, defending the autonomy of women—these are part of the Democratic Party’s raison d’être. How have its leaders responded? With passivity that borders on surrender. After O’Connor’s ruling, the White House issued a press release. “The President,” it began, “is glad to see the Department of Justice is appealing the judge’s decision, which blocks a key provision of the Affordable Care Act that has ensured free access to preventive health care for 150 million Americans.” It went on, with business-as-usual vagueness: “The Administration will continue to fight to improve health care and make it more affordable for hard-working families, even in the face of attacks from special interests.”

You might think that to “fight,” in this situation, would involve kicking up a huge political stink about the fact that Americans’ access to life-saving preventive health care once again depends on the affordability of whatever copays and deductibles are imposed by health insurers. You might think that the Department of Health and Human Services is urgently taking administrative steps to patch up or circumvent the legal defects that supposedly render the Preventive Services Task Force illegal. None of that is happening, as far as anyone can tell.

Within hours of the mifepristone ban, Senator Ron Wyden, a Democrat from Oregon, issued a statement that the FDA should “ignore” a ruling that had no “basis in law.” On CNN that night New York Representative Alexandra Ocasio-Cortez took the same position. The White House indicated that the president did not agree with that suggestion because ignoring the ruling would set a “dangerous precedent”—and that it was bracing instead for “a long fight.” Is that it? There’s nothing more to be said or done? It’s beyond the power of the FDA, with its vast administrative authority, to devise an urgent workaround? We must accept that women’s autonomy is now subject to a new precarity? We must be grateful for the small mercies that the Supreme Court chooses to dispense? President Biden seemingly believes that legislation is the only solution. “My Administration will fight this ruling,” he said in a statement on the day of Kacsmaryk’s initial decision. “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.”

The problem, of course, is that Congress can’t restore Roe v. Wade—not until Democrats control both chambers and are able to overcome the Senate filibuster. That scenario may not materialize for many years. 


The Democrats’ political passivity is hard to fathom. It’s true that many Democrats of Biden’s generation have a spent a lifetime accommodating Republican advances, whether out of indolence or weakness (Senator Dick Durbin, the Chair of the Senate Judiciary Committee, exemplifies this tendency), or out of a belief that voters will reward them for their compromising posture. But free preventive health care is very popular. It doesn’t seem like a good idea to compromise on it. The mifepristone ban is very unpopular, even with many Republicans. The recent Wisconsin Supreme Court election, which ended in a blowout victory for the liberal judge Janet Protasiewicz, demonstrated again (after the November 2022 midterms) that protecting abortion rights is an electoral super-issue for Democrats. Surely the party leadership understands this?

Possibly not. Last June the president’s initial response to the Dobbs ruling verged on the pro forma; and when he campaigned for the November 2022 midterm elections, he largely downplayed abortion rights in favor of economic arguments. For obscure, possibly sentimental reasons, Biden is still pursuing that political unicorn, the low-information white man who is culturally inclined to vote Republican but nonetheless receptive to economic messaging from Democrats he doesn’t trust very much. To this end, Biden and others just spent three weeks promulgating their “Investing in America” tour. As Republican judges dominated the news, the president and vice president popped up in swing states to highlight the administration’s accomplishments in the realm of supply chains, manufacturing jobs, and infrastructure investments.

In twenty-first-century American electoral politics, to be perceived as economically competent is useful but hardly decisive. In any case, is it conceivable that the 2024 election—a Biden versus Trump rematch, probably—will be decided by perceptions of economic competence? To put it another way: Is it possible that American women in 2024 will no longer want free mammograms? Or that they won’t care very much if the state can coerce them and their daughters to give birth? The opportunity cost, for Biden, of not focusing on these issues is incalculably high. Protasiewicz won the Supreme Court election in Wisconsin, a state split evenly between Democrat and Republican voters, by eleven points. The margin of victory had nothing to do with voters’ pocketbook preferences. It had to do with a strategy directed at ensuring that the Republican Party was made to pay for its extremism, first in the court of public opinion, and then, when the time came, at the ballot box.


The Wisconsin example provides a model for how Democrats should proceed. The stakes in that election were high: gaining control of a corrupt state supreme court whose extreme pro-GOP gerrymanders had in effect ended democracy in the state, and whose Republican majority had come within one vote of awarding Wisconsin to Trump even though he’d lost to Biden by 20,000 votes.

Protasiewicz won as a result of what Ben Wikler, the chair of the Wisconsin Democrats, called an “industrial strength” campaign. It involved year-round grassroots organizing, year after year; an absolutely committed, adversarial, must-win posture that did not seek to protect the GOP brand from the party’s own corruption; focusing on the GOP’s extremism in order to flip suburban voters; involving students in organizing and turning out astonishing numbers of student voters; and creating a state party that empowers and enjoys the deep trust of its base and grassroots allies. This dynamic partisan strategy had an enormously beneficial effect on fundraising. Unions and “independent and grassroots groups” have “been running at a fever pitch since 2019,” Wikler reflected after Protasiewicz‘s win.

That means that when we come to an election like this we’re building on relationships and trust established over years as opposed to trying to invent it instantly at the last second.… We kept seventy staff after the 2022 elections and have grown to 118 as of Election Day, plus twenty paid interns, and I think that scale of operation is unprecedented and unequaled in the country…. It allows us to even the playing field against conservative mega-donors who write $5 million checks to dark money groups.

This bears little resemblance to the political operations of the White House or the DNC or underperforming Democratic parties in states such as New York and Florida. That must change. Even before the Texas decisions, legal concerns had led Walgreens to announce that it would not sell mifepristone in twenty-one states. An overreaching GOP is winning ground that is sacred to Democrats. Biden is not doing enough about it.

An earlier version of this article mischaracterized Walgreens’ statement about mifepristone. 

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