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5th circuit ruling
'A Wolf in Sheep's Clothing': Experts Sound Alarm Over 5th Circuit Abortion Pill Ruling
"The court rightly found that some claims were filed too late," said one reproductive rights campaigner, "but that should not distract from the radical assault on the FDA's decisionmaking authority."
Apr 13, 2023
A three-judge panel of the conservative-dominated 5th Circuit Court didn't allow a Texas judge's sweeping attack on abortion medication stand in full, but that was cold comfort to rights advocates and legal experts who said Thursday that the ruling poses a serious threat to reproductive freedoms nationwide.
In a 2-1 decision, the panel's Trump-appointed judges temporarily halted U.S. District Judge Matthew Kacsmaryk's attempt to invalidate the Food and Drug Administration's 2000 approval of mifepristone, noting the anti-abortion groups that sued the agency missed the six-year statute of limitations. (The two judges drew scorn for describing the question of whether the challenge fell outside the six-year window as "close.")
But the two judges— deploying arguments that experts slammed as "absolutely bonkers"—also gave a greenlight to the parts of Kacsmaryk's order that challenged later FDA decisions to expand access to the medication, including a 2021 policy change that allowed the pill to be distributed by mail.
The judges also halted changes that allowed the pill to be prescribed up to 10 weeks of pregnancy instead of just seven.
"This decision is a wolf in sheep's clothing," Nancy Northup, president and CEO of the Center for Reproductive Rights, said in a statement Thursday. "The appellate court order repeats serious errors in Judge Kascmaryk ruling. Again, it is wrong on the facts and the law, resulting in an unprecedented override of the FDA's scientific judgment."
"The court rightly found that some claims were filed too late," Northup added, "but that should not distract from the radical assault on the FDA's decisionmaking authority and the fact that it will wreak havoc on the provision of medication abortion if it stands."
As expected, the Biden Justice Department announced Thursday that it will be "seeking emergency relief from the Supreme Court" in response to the 5th Circuit ruling.
"The Justice Department strongly disagrees with the Fifth Circuit’s decision in Alliance for Hippocratic Medicine v. FDA to deny in part our request for a stay pending appeal," Attorney General Merrick Garland said in a statement, pledging to "defend the FDA's scientific judgment and protect Americans' access to safe and effective reproductive care."
It's unclear how the U.S. Supreme Court, whose conservative supermajority ended the constitutional right to abortion last year, will approach the mifepristone case, which has potentially sweeping implications for reproductive freedom.
Slate court writer Mark Joseph Stern argued that the 5th Circuit ruling looks like "an effort to convince [Supreme Court Justices Brett] Kavanaugh and [Amy Coney] Barrett to preserve a chunk of Kacsmaryk's decision by pruning it and reframing it as a sensible, law-based compromise."
"But it isn't. It's insane," wrote Stern, who made the case that the FDA "has no obligation to impose" the 5th Circuit's orders "and doctors have no duty to follow them."
"We cannot allow MAGA judges to continue abusing their power and ignoring well-established science to carry out their anti-abortion agenda."
A plaintiff must prove they've been harmed or certainly will be harmed by a law or policy in order to have standing to challenge it in court. In Alliance for Hippocratic Medicine v. FDA, the plaintiffs—four doctors and four antiabortion groups—allege contrary to an abundance of evidence mifepristone is "unsafe" and has harmed patients as well as doctors who have prescribed the pill.
But as the Justice Department noted in its appeal of Kacsmaryk's order: "Plaintiffs do not prescribe mifepristone. Instead, they speculate that other doctors will prescribe mifepristone; that those doctors' patients will experience exceedingly rare serious adverse events; that those patients will then seek out plaintiffs—doctors who oppose mifepristone and abortion—for care; and that they will do so in sufficient numbers to burden plaintiffs' medical practices."
Citing precedent, the DOJ contended that such allegations of "possible future injury" are insufficient to establish standing because "threatened injury must be certainly impending to constitute injury in fact."
The 5th Circuit ultimately sided with the antiabortion groups on the question with reasoning that stunned attorneys.
\u201cIf this creates standing, then anyone who\u2019s ever taken time out of work to tweet about a government action has standing to challenge that government action. Calvinball bullshit from bad-faith actors who know that they\u2019re appealing to a lawless court that doesn\u2019t care\u201d— Joel Fleming (@Joel Fleming) 1681340124
\u201calso: does this mean all ER doctors have standing to challenge permissive gun laws? pretty sure gun violence is way more likely to lead to ER visits than mifepristone!\u201d— Leah Litman (@Leah Litman) 1681389280
Experts also sounded alarm over the 5th Circuit judges' defense of Kacsmaryk's reading of the Comstock Act, which has been described as "an 1873 Victorian-era law that targeted obscenity, contraception, and abortion materials sent through the mail."
"While nearly all of the Comstock Act has been held to be unconstitutional, the provisions regarding abortion-related material were never explicitly overturned—and Kacsmaryk's use of the act in his decision may revive a little-known provision from the 1990s that allows it to apply to telecommunications law," Alejandra Caraballo and Kelly Capatosto wrote for Wired on Wednesday. "This decision is a harbinger for a broader crackdown on abortion-related content on the internet."
\u201cThe 5th Circuit has now softly endorsed the Comstock Act. We need to understand that a full revival of Comstock provisions on abortion imperis free speech on the internet. \n\nhttps://t.co/hipHZR4xpR\u201d— Alejandra Caraballo (@Alejandra Caraballo) 1681391998
Christina Harvey, executive director of the progressive advocacy group Stand Up America, argued that the current, hugely consequential fight over mifepristone and the conflicting rulings it has generated is ultimately the fault of the U.S. Supreme Court, whose "decision to overturn Roe declared open season on our reproductive freedoms."
"It enabled an anti-abortion extremist judge to attempt to ban the sale of mifepristone," said Harvey. "It has now resulted in a federal appeals court substantially restricting access to a medication used in over half of abortions nationally as it considers the ban."
"If mifepristone is taken off the market, it will be the biggest blow to abortion access since Roe was overturned," Harvey continued. "We cannot allow MAGA judges to continue abusing their power and ignoring well-established science to carry out their anti-abortion agenda. To protect our reproductive freedoms, Congress should take steps to codify Roe and restore balance to the hyperpartisan Supreme Court that brought us to this devastating moment by expanding the court."
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