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I have good news and bad news out of Wednesday’s federal appeals court hearing on attempts to pull mifepristone from the marketplace.
Let’s start with the good news first.
No matter what decision comes from the Fifth Circuit Court of Appeals hearing, mifepristone—one of two drugs used in medication abortion—will remain legal and safe to use for the immediate future. The legal risk to medication abortion is real, but the potential harms from this fight are delayed. That’s because the order issued by the Supreme Court in this case last month prevents any lower court decision from taking effect until the justices ultimately weigh in—a process that could take months, if not longer. Practically speaking, mifepristone access is safe through at least the fall.
Now the bad news.
It would be hard to choose a panel of judges more hostile to abortion rights and access than the three on the Fifth Circuit—two of whom are Trump appointees—who heard Wednesday’s arguments. I’ll start with the non-Trump judge on the panel, Jennifer Walker Elrod. While she may not be a Trump appointee, she’s as openly hostile to abortion rights and access as any judge on the federal bench right now. A George W. Bush appointee, Elrod has a long history of opposing both abortion rights and federal regulatory power as a Fifth Circuit judge.
Then we have the two Trump appointees. Judge Cory Wilson was appointed to the Fifth Circuit in 2020 and is a former Mississippi appeals court judge and Republican member of the state legislature with a deep record opposing abortion rights. Second, Judge James Ho is a former Texas solicitor general and Justice Clarence Thomas law clerk who has referred to abortion as a “moral tragedy” in one of his judicial opinions.
Don’t think for a second this panel of ideologues was ever interested in a debate on the merits—or complete lack thereof—of Alliance for Hippocratic Medicine’s legal arguments over the mifepristone case. They weren’t. Instead, they were looking for the clearest path toward an opinion that at least five Supreme Court justices can endorse to upend medication abortion access.
Judge Wilson is incredulous that a nurse-midwife could ever be in a position to provide mifepristone — love it when the stigma and sexism just cozy up in public like that
— Rewire News Group (@RewireNewsGroup) May 17, 2023
It could be months before the Fifth Circuit issues a ruling, but when they do, I suspect they’ll find a way to at least turn medication abortion access back to the pre-2016 era, when more onerous restrictions existed. Elrod asked several questions suggesting the possibility of it—Justice Samuel Alito had also suggested he would be amenable to it when he dissented from the Court’s previous stay in this case. Elrod also seemed very upset with how Judge Matthew Kacsmaryk’s district court order had been characterized by attorneys for Danco (one of the manufacturers of mifepristone) in their briefs, going so far as to call it a “personal attack” (which, truly, there’s no response to that nonsense). The attorneys called Kacsmaryk’s decision unprecedented—which it is. That’s a statement of fact, not a personal attack.
But what really stood out from the arguments was how partisan they were. The Fifth Circuit panel’s disdain for the Biden administration specifically and Democrats generally was palpable. They were openly hostile to the FDA’s attorney while having a nice leisurely chat with Erin Hawley, the Alliance Defending Freedom attorney arguing to pull mifepristone from the market—and yup, Sen. Josh Hawley’s wife. We may not have the Fifth Circuit’s decision yet, but the writing is on the wall.
I cannot stress this point enough: Mifepristone approval will not be upended immediately, but it may be eventually. The conservative legal movement has gone rogue and taken much of the federal judiciary with them. These are lawless power grabs emboldened by the success of the overturning Roe v. Wade and blessed by the most corrupt elements of a captured Supreme Court. Nothing about the challenge to mifepristone approval is legitimate. We don’t need to treat it as such.