The notoriously right-wing Fifth Circuit Court of Appeals upheld much of Judge Matthew Kacsmaryk’s ruling on mifepristone from late last week in an early Thursday decision that may prompt the Justice Department to seek relief from the Supreme Court.
Kacsmaryk stayed the Food and Drug Administration’s (FDA) 2000 approval of mifepristone last week based on both anti-abortion myths regarding the dangerousness of the drug, and on near-universally panned contortions of standing and timeliness.
The Fifth Circuit panel broke from Kacsmaryk on rejecting the 2000 FDA approval, saying that the six-year statute of limitations to challenge that agency action has passed (though without much conviction, saying that the anti-abortion plaintiffs may win on that topic at another stage of litigation). But it agreed with Kacsmaryk on nearly everything else.
The panel — comprised of two Donald Trump appointees, and one George W. Bush appointee — would let mifepristone remain on the market with FDA approval, but would reject many of the steps to expand access and lift restrictions that the FDA has taken since 2016. That means that mifepristone would only be available under the previous, much more restrictive regime: allowed to be used only up until 50 days into a pregnancy versus 70, with patients required to have multiple in-person visits with a provider, and the pills not allowed to be mailed. (The Bush appointee said she wanted to grant an administrative stay, and to punt a decision on the stay pending appeal to the argument panel — meaning this decision comes courtesy of the two Trump judges.)
Mifepristone has always been subject to an unusually harsh set of restrictions on its use and prescription, which the medical community has soundly criticized as based in politics and not medical fact.
The Fifth Circuit panel’s ruling is shot through with similar ideological, non-scientific, anti-abortion rhetoric to that which peppers Kacsmaryk’s decision.
“As a result of FDA’s failure to regulate this potent drug, these doctors have had to devote significant time and resources to caring for women experiencing mifepristone’s harmful effects,” the panel writes, a regurgitation of anti-abortion lies about mifepristone being particularly dangerous.
At another point, the panel refers to a fetus as an “unborn child” — a term that is often shorthand for the idea of fetal personhood, the anti-abortion theory that fetuses are essentially just small children with rights under the 14th Amendment, so all abortion is murder.
But the appeals court’s cosigning of Kacsmaryk’s novel interpretations of standing alone will likely be enough for the DOJ to appeal.
The plaintiffs, an organization of anti-abortion doctors that incorporated in Amarillo — coincidentally, where Kacsmaryk sits and gets 100 percent of cases filed — shortly after Dobbs is basing its injury on the hypothetical possibility of future harms, the chance that some women may have adverse side effects from mifepristone (which none of these doctors prescribe) and require care. As the government has repeatedly pointed out, we have 20 years with this drug available to prove that it does not send floods of women to the emergency room with complications, despite the picture drawn by the anti-abortion parties.
This, coupled with the courts’ very loose interpretation of timeliness and exhaustion — the speed with which groups challenge agency actions and the requirement that they try all the various administrative challenges available to them first — set off alarm bells for even conservative legal experts, as it would open the floodgates to challenges of FDA’s approval of virtually any drug.
The 5th Circuit panel tries to assure its audience that it’s only applying such radical reasoning to the abortion drug, and that the ruling will not have such far-flung consequences.
“We do not hold that doctors have standing to challenge FDA’s actions whenever the doctor sees a patient experiencing complications from an FDA-approved drug,” the judges write. “Rather, we hold that on the record before us applicants know that hundreds of thousands of women will — with applicants’ own statistical certainty — need emergency care on account of applicants’ actions. And because applicants chose to cut out doctors from the prescription and administration of mifepristone, plaintiff doctors and their associations will necessarily be injured by the consequences.”
The panel’s disagreement with Kacsmaryk on staying the FDA’s original approval of the drug may not last either. The argument panel could side with Kacsmaryk there too, greenlighting his entire opinion.
Thursday’s decision also runs headlong into another out of Washington that was handed down 20 minutes after Kacsmaryk’s last week. There, the judge ruled that the FDA must keep mifepristone available as usual in the blue states involved in the lawsuit — that it must uphold the “status quo.” The status quo for the past seven years has entailed the lifting of these various restrictions, which the Fifth Circuit panel is now reimposing.
The government judges in the Washington case asked Judge Thomas Rice to clarify how they should abide by both his order and the contradictory one out of Texas (and now at the Fifth Circuit) by Friday.
Read the ruling here: