Yesterday an all-Republican-appointed three-judge panel from the Fifth Circuit Court of Appeals heard the mifepristone case, and the likely outcome appears bleak.
Last year, a rightwing organization and several anti-choice OB-GYN’s sued the FDA in Amarillo to reverse the federal approval of mifepristone, a medication that can terminate an early pregnancy. The FDA authorized mifepristone for use in the United States in 2000. It is safer than Tylenol and Viagra.
Because the lawsuit was filed in Amarillo, it was guaranteed to wind up with Trump-appointed Judge Matthew Kacsmaryk, who in April issued a ruling that invalidated the FDA’s authorization of mifepristone. The Fifth Circuit blocked Kacsmaryk’s ruling, but still implemented restrictions on mifepristone. For now, the Supreme Court has nulled both those decisions with an emergency stay, meaning mifepristone remains available (even in states that have banned abortion like Texas).
But, the mifepristone case is back before the Fifth Circuit and a trio of Republican-appointed judges including: James Ho, Cory Wilson, and Jennifer Elrod. Ho and Wilson were appointed by Trump, and Elrod was appointed by George W. Bush. Ted Cruz posted a photo in 2018 of Ho’s swearing in ceremony, which was officiated by Clarence Thomas at Harlan Crow’s now-infamous library.
The Republican circuit judges appeared hostile to the arguments from the FDA and one of mifepristone’s manufacturers that this lawsuit lacks standing, since it’s been over 23 years since the drug was approved. The judges also chastised comments from the manufacturer about Kacsmaryk’s ruling, implying it was inappropriate to use phrasing like “judicial assault.”
The Fifth Circuit’s decision could come in weeks or months. And it will likely go the Supreme Court after that. Many organizations are bracing for another worst-case scenario, but for now mifepristone remains available. And there are groups like Mayday.Health that can are trying to make it easier for everyone (even Texans) to have access to medication.
A longtime writer and journalist, Jessica was thrilled to join the Texas Signal where she could utilize her unique perspective on politics and culture. As the Features and Opinion Editor, she is responsible for coordinating editorials and segments from diverse authors. She is also the host of the podcast the Tex Mix, as well as the co-host for the weekly SignalCast. Jessica attended Harvard College, is a onetime fitness blogger, and has now transitioned to recreational runner (for which her joints are thankful).