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When Texas District Judge Matthew Kacsmaryk ruled in favor of a lawsuit that asked for the Food and Drug Administration (FDA)'s approval of mifepristone to be rescinded last week, he did so by issuing a universal injunction—a legal move that many consider problematic, to say the least.
On Friday, Kacsmaryk voted in favor of a November 2022 lawsuit by anti-abortion group Alliance for Hippocratic Medicine against the FDA, arguing that the agency didn't have the authority to approve the abortion drug in 2000. The ruling, as a universal injunction, had the potential to ban the use of mifepristone nationwide—though a federal appeals court voted on Wednesday to preserve access to the abortion drug.
Universal injunctions, also known as national or nationwide injunctions, are court orders that reach beyond the plaintiffs involved in the case to include a vast number of people not party to the litigation discussed in the ruling.
In recent years, universal injunctions have shifted from the margins of the U.S. judicial system to become a much more common strategy to approach high-profile issues—such as abortion medication. Since 2008, lower federal courts have issued dozens such injunctions to block government policies from being enforced, on both sides of the political spectrum.
"It is not uncommon for liberal and conservative groups to go into district court, trial court, federal trial court, somewhere in the country, and find an outlier judge," William Eskridge, a law professor at Yale University, told Newsweek. "He or she issues a nationwide injunction, and then that creates a race up the ladder to the appeals courts and, ultimately, the Supreme Court litigating the merits issues under the guise of appealing the injunction."
But while the issue of universal injunctions seems bipartisan, critics have questioned the constitutionality of these measures and their impact on the national debate about certain issues.
According to Eskridge, one of the problems with a universal injunction "is that it immediately raises the stakes" of whatever issue is involved.
"Kacsmaryk didn't issue an injunction just for Texas, he issued a nationwide injunction," he told Newsweek. "And that puts enormous pressure on everybody—the DOJ, the Fifth Circuit, ultimately the Supreme Court to take the case on a rocket docket. And that's the worst way to decide these kinds of issues, it seems to me."
The Fifth Circuit Court of Appeal was called to weigh in on the issue after the Department of Justice appealed the Texas ruling last week. With a 2-1 vote, the appeals court decided to preserve access to mifepristone—one of the two drugs used in abortion medication—but under tighter rules. However, it is still possible that the ruling will be appealed and eventually reach the Supreme Court.
"Several justices, most notably Justice [Clarence] Thomas, have been sharply critical of nationwide injunctions," Eskridge said.
"And I think the Department of Justice has been critical of them for at least 20 years among both Democratic and Republican administrations. Paul Clement, the solicitor general under Bush, once explained to me what he felt was the main reason why I thought that [universal injunctions] didn't make sense: it puts too much pressure on the system to rush to judgment."
According to Eskridge, "the Supreme Court always, in my opinion, takes a big risk to his reputation and the rule of law when it operates under an expedited time schedule, and sometimes that's essential."
Eskridge does not think that universal injunctions should be outlawed, but believes they're being abused, "and this is an instance where it is being abused and it is not making sense."
He added: "It creates this conflict, it creates turmoil, needless turmoil. Whereas if the injunction was just limited to Texas, it would be more likely to just go through the ordinary ladder."
About the writer
Giulia Carbonaro is a Newsweek reporter based in London, U.K. Her focus is on the U.S. economy, housing market, property ... Read more