U.S. appeals court judges began hearing arguments on Wednesday in a legal battle over the availability of the abortion pill mifepristone, with potentially far-reaching consequences for abortion access across the United States.
Circuit Judge James Ho interrupted an attorney for the federal government, Sarah Harrington, almost as soon as she began her presentation, questioning her use of “unprecedented” to describe the case. “We had a challenge to the FDA just yesterday,” he said.
Lawyers for the federal government are urging a three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans to overturn last month’s unprecedented ruling by U.S. District Judge Matthew Kacsmaryk in Amarillo, Texas suspending mifepristone’s approval.
Danco Laboratories, which sells the drug under the brand name Mifeprex, is also expected to argue before the court.
The administration of President Joe Biden is seeking to defend mifepristone in the face of mounting abortion bans and restrictions enacted by Republican-led states since the U.S. Supreme Court in June overturned the landmark 1973 Roe v. Wade decision that had legalized the procedure nationwide.
Anti-abortion groups and doctors, led by the recently formed Alliance for Hippocratic Medicine, will be defending Kacsmaryk’s order. They claimed in their lawsuit last year that mifepristone is unsafe and that the U.S. Food and Drug Administration’s approval, almost 23 years ago, was illegal.
Harrington, was pressed by all three judges to explain why the government did not think the doctors who were part of the group of plaintiffs lacked standing and could not show they suffered some harm from the FDA approval for the abortion pill.
The emergency room doctors said they were being forced to complete surgical abortions, which was against their conscience, for women who took the pill and failed to complete a medical abortion.
“It just strikes me that what the FDA has done in making this more available,” said Circuit Judge Cory Wilson, “is you’ve made it much more likely that patients are going to go to emergency care or a medical clinic where one of these doctors are a member.”
By filing their case in Amarillo, the plaintiffs assured it would go before Kacsmaryk, a conservative and former Christian activist, and that any appeal would go the conservative 5th Circuit. Twelve of the circuit’s 16 active judges were appointed by Republican presidents.
All three judges on Wednesday’s panel are staunchly conservative, with a history of opposing abortion rights. Ho and Wilson were appointed by Donald Trump. The third judge, Jennifer Walker Elrod, was appointed by George W. Bush.
Mifepristone remains available for now, following an emergency order from the U.S. Supreme Court putting Kacsmaryk’s order on hold during the appeal.
SAFE AND EFFECTIVE
Mifepristone is part of a two-drug regimen with misoprostol used for medication abortions, which account for more than half of U.S. abortions. It is approved for use in the first 10 weeks of pregnancy.
Numerous medical studies have concluded that the drug is safe and effective.
Major medical associations, including the American College of Obstetricians and Gynecologists (ACOG) and the American Medical Association (AMA), have said in court filings that pulling mifepristone off the market would harm patients by forcing them to undergo more invasive surgical abortions.
Drug industry groups have also said it would disrupt drug development by making every FDA approval subject to second-guessing by courts.
Those groups, including Pharmaceutical Research and Manufacturers of America, are among many organizations and people that have submitted friend-of-the-court briefs in the case.
The AMA, ACOG and Democratic lawmakers have also weighed in to support the administration, while anti-abortion groups and Republicans have backed the plaintiffs.
Whichever way the 5th Circuit panel rules, the decision is sure to be appealed, first to the full court and then to the U.S. Supreme Court.