A panel of 5th Circuit Court of Appeals judges — all Republican appointees — unapologetically carried water for the anti-abortion litigants Wednesday during oral arguments in a case where those litigants are trying to get an abortion pill, mifepristone, yanked from the market.
“When we celebrated Mother’s Day, did we celebrate an illness?” Judge James Ho, a Donald Trump appointee, snarked, regurgitating a false argument by the anti-abortion doctor plaintiffs that the Food and Drug Administration classified pregnancy as an illness to rush mifepristone through the approval process.
But perhaps the comedic peak of the arguments came when George W. Bush appointee Judge Jennifer Walker Elrod took time out to scold the lawyer for Danco, a manufacturer of mifepristone, for criticizing Judge Matthew Kacsmaryk, the anti-abortion district court judge that handed down the first ruling in the case. Kacsmaryk’s ruling has been widely panned, including by his fellow judges, as the latest in a series of nakedly partisan decisions.
“Your filings have been excellent, however I am concerned about some rather unusual remarks in the filings — these are remarks we don’t normally see in briefing from very esteemed counsel that talk about the district court,” Elrod said, affecting a dramatic tone to read phrases including that the district court “defied long-standing precedent” and that the court’s injunction was “an unprecedented judicial assault.”
“I’m wondering if you would have had more time and not been under a rush and probably exhausted from this whole process, would those have been statements that would have been included in your brief?” she asked.
When Danco’s lawyer pushed back, saying that the language reflected the unprecedented nature of the case, Elrod took an incredulous tone: “So you think it’s appropriate to attack the district court personally in the case in that way.” Ho soon jumped in to continue the beratement.
The three-judge panel, rounded out by Trump appointee Judge Cory Wilson, left little mystery as to how it will ultimately rule. The judges asked questions premised on the myth that mifepristone is sending floods of women to the emergency room, prompting the Department of Justice lawyer to frequently remind the judges that the drug is incredibly safe. Ho railed against the FDA, listing a series of supposed errors it made unrelated to the abortion case, seemingly to make the case that judges should overturn its experts’ decisions.
Elrod grilled the lawyer for Danco, pushing for her to provide justification for how the company would suffer any injury if the court restricts its primary product — after she and her colleagues fought tooth and nail to show that the anti-abortion doctors, who have struggled to show any direct injury from the mifepristone regime, have standing to bring the case in the first place.
Elrod also, while asking how information about adverse reactions to mifepristone are collected, asked how it’s gathered from emergency rooms — “or, God forbid, the morgue.”
Ho also brought up Justice Samuel Alito’s furious dissent, when he asked whether the government would even heed court decisions in this case. Some Democrats have called on the Biden administration to leave mifepristone on the market no matter what happens, citing the right-wing judge shopping in the case. The White House has told TPM that it will not “ignore” the court decisions, but didn’t clarify how the FDA would act, should it lose at the Supreme Court.
The Fifth Circuit’s attitude was predictable to the anti-abortion litigants too. It’s why they placed this case with Kacsmaryk in Texas, knowing that there’s a very good chance that they’d get a right-wing panel when the case got appealed to the Fifth Circuit.
The case will almost certainly head to the Supreme Court after the Fifth Circuit rules. Until then, the high court’s administrative stay blocking the lower court rulings — which would have reimposed onerous restrictions on the drug — will remain in place, and mifepristone will be accessible as usual.