Conservative judges hear challenge to abortion pill access in controversial lawsuit
Three US appeals court judges who have previously favored abortion restrictions prepared to hear oral arguments on Wednesday on the future of the major abortion drug mifepristone.
The case – which has landed before judges Jennifer Walker Elrod, James Ho and Cory Wilson – essentially calls on them to rule on whether the federal government should suspend orscale back the federal Food and Drug Administration’s (FDA) approval of mifepristone in 2000, along with later actions that made the pill more widely accessible.
Mifepristone has consistently been found to be safe and effective, and advocates argue that it is safer than the erectile dysfunction medication Viagra and low-level pain reliever Tylenol.
But an emboldened anti-abortion movement set its sights on mifepristone after the US supreme court’s conservative majority last year eliminated federal abortion rights that had been established by the Roe v Wade decision in 1973.
After a coalition of groups brought a lawsuit in November against the FDA’s approval of the drug,Texas-based federal judge Matthew Kacsmaryk in April issued a ruling suspending the FDA’s approval of mifepristone.Joe Biden’s administration appealed, sending it to the appellate court in New Orleans where Elrod, Ho and Wilson sit– and to the supreme court, which indefinitely blocked the suspension as the case proceeds.
The plaintiffs in the dispute are an alliance of physician groups who generally argue they have standing to bring the case because they have members in Texas and elsewhere in the US who have treated women and girls experiencing complications after taking mifepristone for abortions. The Alliance for Hippocratic Medicine, the American Association of Pro Life OBGYNs, the American College of Pediatricians and the Christian Medical & Dental Associations contend that the complications – bleeding and pain – are dangerous, and have trotted out unproven arguments that women who have abortions are prone to suicide and depression.
Studies have shown that 95% of women who had abortions reported five years later that it had been the right decision for them.
Their effort to in essence ban mifepristone alsohinges on a 150-year-old law known as the Comstock Act, which criminalizes the mailing or shipping of any “lewd, lascivious, indecent, filthy or vile article”, along with anything that is “advertised or described in a manner … for producing abortion”.
Interpreted broadly enough, opponents of the plaintiffs say, the previously dormant Comstock Act could prohibit the legal mailing of any abortion instrument, even to states which have chosen to keep abortion legal since last year’s supreme court ruling, bringing the US one step closer to a national abortion ban that – according to polling – most Americans would not support.
Meanwhile, the FDA’s efforts to rebuff the physician group has involved defending mifepristone’s approval process against claims that it was inadequate, along with characterizing the plaintiffs as lacking standing despite their contentions to the contrary.
Jennifer Dalven, the director of the American Civil Liberties Union’s Reproductive Freedom Project, on Monday described the fifth circuit panel hearing the caseas “one of the worst panels of judges that could have been assembled for those who believe mifepristone should remain on the market”.
“This case should’ve been laughed out of court from the start – it has no basis in science, it has no basis in law, it’s been roundly criticized by experts from across the ideological spectrum,” Dalven said during a virtual briefing with reporters. “But we’re living in strange times, and some judges have shown that they’re willing to blatantly ignore the rule of law to achieve their own ideological goals.”
Donald Trump nominated Ho and Wilson to their posts during his presidency. (He alsonominated Kacsmaryk, whose ruling is the subject of Wednesday’s hearing.)
Trump’s fellow Republican president George W Bush nominated Elrod.
All three in 2021 upheld a Texas law which outlawed an abortion method commonly used to terminate pregnancies in their second trimester.
A 2018 opinion from Ho called abortion “a moral tragedy”. And in 2019, though he concurred with an opinion
which found that an abortion ban in Mississippi had to be struck down under legal precedent then in effect, he asserted: “Nothing in the text or original understanding of the constitution establishes a right to an abortion.”
For her part, Elrod not only wrote the 2021 opinion addressing Texas’s ban of the second-trimester pregnancy abortion method, but also an opinion that same year which declined to order Louisiana state officials to issue a delayed license for a Planned Parenthood abortion clinic in New Orleans. The opinion declared no one had the federal right to operate an abortion clinic.
Either side could appeal any ruling from Elrod, Ho and Wilson to the supreme court, which could take a year or more to issue the final word on the matter.