Ahead of Wednesday’s argument over the safe and commonly used abortion pill mifepristone, I noted that all three judges on the 5th U.S. Circuit Court of Appeals panel considering the case were firmly in the anti-abortion camp. So it wasn’t surprising when they brazenly displayed those credentials at the hearing. But some of their comments still stood out for their foolishness and irrelevance — though, importantly, as I’ll explain, their whacked-out views might not matter to the fate of abortion access in this case.
Perhaps the most memorable comment Wednesday came from Judge James Ho, a Donald Trump appointee who decried the “moral tragedy” of abortion in a 2018 opinion. He asked Jessica Ellsworth, a lawyer for brand name mifepristone manufacturer Danco: “When we celebrated Mother’s Day, were we celebrating illness?”
“When we celebrated Mother’s Day, were we celebrating illness?”
— The Recount (@therecount) May 17, 2023
— During arguments in the case concerning access to the abortion medication mifepristone, Judge James Ho presses lawyer on the FDA’s original basis for expediting the drug. pic.twitter.com/1n0mJ99TwY
You don’t have to be a lawyer or judge to realize there was no need to ask such a trollish question.
As for what Ho was even talking about, the Trump judge latched onto an argument from the anti-abortion side, which is misleadingly attacking the Food and Drug Administration’s 2000 approval of mifepristone by complaining that the agency wrongly deemed pregnancy an illness to push the drug through. Ellsworth explained to the judge that the term was used interchangeably along with “condition,” so the issue isn’t whether pregnancy is an illness. Plus, the part of the law that Ho asked about isn’t even what governs mifepristone regulation today, so the linguistic debate is irrelevant.
At any rate, to the extent Ho had a legitimate question, he knew there was a more judicial way to ask it.
You don’t have to be a lawyer or judge to realize there was no need to ask such a trollish question.
But the Trump judge’s made-for-Fox News quip showed that Wednesday’s argument could be less about law than about providing a forum for the judges’ personal feelings. And those feelings were sympathetic to the anti-abortion views of Judge Matthew Kacsmaryk, whose April 7 order set off this mifepristone mess. He suspended the FDA’s 2000 approval of the drug in an unprecedented and unscientific order that was somewhat narrowed by a prior 5th Circuit panel. But the Supreme Court last month blocked even the narrowed restrictions from taking effect and sent the case back to the 5th Circuit for more litigation before this new panel.
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Yet even describing Kacsmaryk’s unprecedented order as such seemed to upset the GOP-appointed bench, which also included Trump appointee Cory Wilson and George W. Bush appointee Jennifer Elrod. Arguing for the FDA was a top Justice Department lawyer, Sarah Harrington, who began the hearing by criticizing Kacsmaryk’s “unprecedented and unjustified attack on FDA’s scientific expertise.” That caused Ho to cut Harrington off at the very beginning of her argument to complain about her using the term “unprecedented,” even though it’s true. Elrod engaged in similar tone policing. The actual substance of the argument highlighted how the anti-abortion doctors who brought the case to Kacsmaryk shouldn’t even have standing to do so. They have legal protections from providing abortions against their beliefs, so it’s unclear how mifepristone legally affects them besides it just generally bothering them that abortions are taking place. But let’s get back to what might be the most important practical point, for now — that however extreme these 5th Circuit judges are, and whatever they decide at this stage of the case, they can’t take mifepristone off the market on their own. That’s because the Supreme Court’s order blocking Kacsmaryk’s order from taking effect is still in place, and it will stay in place during this litigation so that the Supreme Court can have the last word. So while it’s unsettling to rely on the court that overturned Roe v. Wade last year, that’s where we’re at.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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