The fight over access to a critical abortion drug rages on. On Wednesday, lawyers for the Biden administration and Danco Laboratories, the maker of mifepristone, defended the Food and Drug Administration’s two-decade old approval of the medication, while advocates for a coalition of anti-abortion medical and dental societies argued the drug — famous for causing fewer complications than Tylenol — is too dangerous to remain on the market.
The battle began in November, when a newly formed organization, the Alliance for Hippocratic Medicine, filed a lawsuit in Amarillo, Texas, demanding the FDA end its approval of mifepristone, the first pill in the two-pill abortion medication regimen. Amarillo was chosen for a reason: The Northern District of Texas is home to a judge with a reputation for being especially hostile to abortion rights. Last month, in a 67-page opinion littered with rhetorical flourishes favored by the anti-abortion movement, Judge Matthew Kacsmaryk ordered the FDA to do exactly what the plaintiffs asked and rescind approval for mifepristone. The decision triggered a cascade of emergency appeals — first to the Fifth Circuit Court of Appeals, which partially upheld the lower court’s ruling, and then to the Supreme Court, which stayed the decision, protecting access to the most widely used means of abortion in the United States, at least temporarily.
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Lawyers for all three parties were back in court Wednesday, appearing this time before a panel of three Fifth Circuit judges in New Orleans, Louisiana. A decision from the court is not expected to pose an existential threat to nationwide access to mifepristone the way Kacsmaryk’s decision did: a ruling in favor of the plaintiffs would likely remain on hold because of the stay already issued by the Supreme Court.
Advocates for reproductive rights were not optimistic going into the hearing. “We know that the Fifth Circuit in general is incredibly hostile to abortion, and the judges who have been assigned to this case happen to be particularly conservative,” Jennifer Dalven, Director of the ACLU Reproductive Freedom Project, said Monday on a call with reporters. She added that some have gone so far to call the three jurists “one of the worst panels of judges that could have been assembled” from the perspective of anyone hoping to protect access to the abortion pill.
Like Kacsmaryk, each of the judges who heard arguments on Wednesday — Cory Wilson, Jennifer Walker Elrod, and James Ho — have lengthy anti-abortion records. Before he was a judge, Wilson was a Republican official who served in Mississippi House of Representatives, where he voted to restrict abortion and voiced support for the reversal of Roe v. Wade.
Elrod likewise has a long history of restricting abortion: in 2014, she voted to uphold a Texas law that required doctors to gain hospital admitting privileges, banned abortion at 20 weeks, and restricted the use of abortion pills. (The law was later struck down by the Supreme Court.)
Judge James Ho, who called abortion a “moral tragedy” in a 2018 opinion, also “volunteered” as an attorney for the anti-abortion First Liberty Institute where Kacsmaryk was once deputy general counsel. (Another bit of trivia: Ho was sworn in as a member of the federal bench by Justice Clarence Thomas, in the private library of Harlan Crow — the Republican billionaire who purchased the home Thomas’ mother lives in, paid for his grandnephew’s private education, and bankrolled many years of Thomas’ vacations. Ted Cruz was also present at the swearing in as a witness.)
Advocates were right to be concerned. The judges were aggressive with the defendants — Danco and the FDA — and deferential to the plaintiffs — Alliance for Hippocratic Medicine, represented by Sen. Josh Hawley’s wife, Erin — from the very start.
Deputy Assistant Attorney General Sarah Harrington had barely finished the first two sentences of her argument before Ho interrupted her, taking umbrage with her assertion that the case was “unprecedented.” Harrington patiently explained that no court has ever vacated the FDA’s determination that a drug is safe to be on the market. (“We are allowed to look at FDA just like any other agency,” Ho grumbled.)
But the idea that this case is “unprecedented” was a point both Ho and Elrod returned to later. Elrod was miffed by what she called “unusual remarks” from the plaintiffs’ lawyers that she said equated to a personal “attack” on the district court — phrases like “the district court defied long standing precedent,” “the court’s relentless one-sided narrative,” and “the non-expert court.”
The question before the court could affect the lives of millions of women across the United States, but the judges were concerned whether lawyers might have hurt Kacsmaryk’s feelings with their strongly-worded brief. “I’m wondering if you would have had more time, and not been in a rush, and probably exhausted from this whole process, would those have been statements you would have included in your brief?” Elrod wanted to know. “You think it’s appropriate to attack the district court, personally, in that kind of way?”
Much of Wednesday’s hearing centered around the question of whether the plaintiffs in this case — doctors affiliated with the anti-abortion medical societies which brought the case — have a legal right to file it. Lawyers for FDA and Danco argued that those doctors could not show they were harmed by the FDA’s approval of the drug, and that existing state and federal conscience protections shield them from providing care to which they object. The judges appeared skeptical of the plaintiffs’ argument.
The Fifth Circuit is expected to issue an opinion on the case in the coming weeks or months, but the ruling will likely remain on hold until one of two things happens: either the Supreme Court declines to take up the case, or, if it does take up the case, until it issues its own decision. The earliest Alliance for Hippocratic Medicine v. FDA could be heard in the Supreme Court is next year, but it’s possible that the case may not be heard until the 2024-2025 session.
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