UPDATE (April 13, 2023, 12:08 p.m. ET): The Department of Justice on Thursday announced it will seek emergency relief from the Supreme Court after a 5th Circuit Court of Appeals panel upheld part of a ruling limiting access to the abortion drug mifepristone.
A federal appeals court ruled late Wednesday that the commonly used abortion drug mifepristone can remain available but with stricter rules for access, partially blocking a Donald Trump-appointed judge’s order in Texas last week.
The decision by a three-judge panel of the 5th Circuit Court of Appeals rejected part of U.S. District Judge Matthew Kacsmaryk's extreme ruling last Friday that suspended the Food and Drug Administration’s 2000 approval of mifepristone. But the panel, led by two Trump appointees, agreed with Kacsmaryk in ruling against more recent FDA actions starting in 2016 that include allowing mail access to the drug instead of requiring in-person pickup.
The bottom line is that, for now, we are looking at more abortion restrictions courtesy of Trump judges. But this is a fast-moving issue, and there may well be further changes as the appeal continues. The case will next go to another panel in the 5th Circuit — arguably the most extreme conservative court in the country — for further litigation. That new 5th Circuit panel won't be bound by Wednesday’s ruling. The Supreme Court could have the final word on the matter in any event.
Kacsmaryk based his opinion purporting to halt the long-used drug’s approval on shoddy data, anti-abortion rhetoric and dubious legal reasoning.
In its ruling Wednesday night, the panel said it appeared the statute of limitations blocked anti-abortion plaintiffs from challenging the 2000 approval, but that the plaintiffs could challenge FDA actions starting in 2016. The panel split 2-1, with the two Trump appointees in the majority and a George W. Bush appointee in dissent, saying she would have temporarily blocked Kacsmaryk’s ruling in full while litigation continues.
The federal government and the drug’s manufacturer, Danco, appealed Kacsmaryk’s order from last Friday that he put on hold for a week, allowing the government to try to block it from taking effect. A longtime abortion opponent — that’s why the plaintiffs brought the case to him — Kacsmaryk based his opinion purporting to halt the long-used drug’s approval on shoddy data, anti-abortion rhetoric and dubious legal reasoning. The 5th Circuit panel on Wednesday endorsed at least some of that reasoning, showing that it was still extreme in its own right, even if it didn't go as far as Kacsmaryk.
For example, the panel endorsed the notion that the plaintiff doctors have legal standing to raise their challenge in the first place, which was one of the more glaring errors in Kacsmaryk's ruling. The panel also endorsed the application of a draconian 19th-century law barring mailing abortion drugs called the Comstock Act, which MSNBC columnist Jessica Levinson described as a "zombie law" that "hasn’t been used for nearly a century" and risks great damage "to women’s ability to obtain safe, reliable and life-saving reproductive care."
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In a legal filing arguing for a stay, the government warned of Kacsmaryk's ruling: "If allowed to take effect, the court’s order would thwart FDA’s scientific judgment and severely harm women, particularly those for whom mifepristone is a medical or practical necessity." Even though it only partially approved Kacsmaryk’s order, the 5th Circuit panel opinion still suffers from similar flaws, imposing its own judgment in place of the FDA's and harming women in the process.
Importantly, another wrinkle in the fate of mifepristone's availability is that, on the same day that Kacsmaryk entered his order last week, a federal judge in Washington state handed down a conflicting order in another case that blocks the FDA from altering the status quo on mifepristone’s availability. Those conflicting rulings could make Supreme Court resolution of the issue even more likely, where the GOP majority that overturned Roe v. Wade last year would get final say on the matter.