Three GOP Judges to Hear Next Phase of Abortion Pill’s Fate

May 8, 2023

Three judges from the New Orleans-based 5th Circuit U.S. Court of Appeals—all Republicans—will oversee the next stage of the legal challenge to the abortion pill.

The pill mifepristone can be used along with another medication, misoprostol, to end a pregnancy. The Food and Drug Administration approved mifepristone more than 20 years ago. Currently about half of all abortions in the U.S. are medication abortion.

Circuit Court Judges James Ho and Cory Wilson, both Trump nominees, along with George W. Bush nominee Judge Jennifer Walker, will hear oral arguments in a lawsuit brought by a group of anti-abortion doctors in Texas who have questioned the decades-old drug’s safety. 

In April U.S. District Judge Matthew Kacsmaryk had sided with the doctors, and halted access to mifepristone nationwide—even in states where abortion remains legal. His ruling was appealed  by the Department of Justice, which took the case to the Supreme Court.

On April 21, seven of the Supreme Court Justices blocked the pill’s temporary halt, with Justices Alito and Thomas voting to allow the restriction to take effect immediately.

The high court’s stay extension came less than 10 months after the Justices had ruled 6-3 to overturn Roe v Wade.

Their ruling means the nationwide ban on mifepristone will remain on hold until the case goes back to the Supreme Court, no matter how the 5th Circuit Court’s judges rule. 

Judge Ho, a former Texas solicitor general, is reportedly considered one of the most conservative judges on the already-conservative 5th Circuit. In 2018 he referred to abortion as a “moral tragedy.”

The next year he described a trial judge’s striking down of a 15-week abortion ban as displaying “an alarming disrespect for the millions of Americans who believe that babies deserve legal protection during pregnancy as well as after birth,” going on to describe abortion as “the immoral, tragic, and violent taking of innocent human life.”

In filings to the 5th Circuit last week, the DOJ asserted that Kacsmaryk’s conclusions that the abortion drug was unsafe rested “on a series of fundamental errors.”

The filing went on to say, “While FDA justified its scientific conclusions in multiple detailed reviews, including a medical review spanning more than 100 pages and assessing dozens of studies and other scientific information, the district court swept the agency’s judgments aside by substituting its own lay understanding of purportedly contrary studies, offering demonstrably erroneous characterizations of the record.”

The anti-abortion advocates in the case are expected to file a response later Monday. 

PHOTO: 5th Circuit U.S. Court of Appeals

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