Fifth Circuit Allows Abortion Pill, But Only With Written Consent Of Embryo

A federal appeals court ruled Wednesday that mifepristone, one of the two drugs most commonly used in medication abortions, can stay on the market, but only with significant restrictions on how patients can access it. The ruling, however, won’t go into effect until the US Supreme Court takes a whack at it, because in April the Supremes put a stay on any restrictions on mifepristone until the Court considers the whole case. The result is that for now, the drug can still be prescribed remotely and delivered by mail.

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Just to remind you, this is the completely crap case out of Texas in which a group of antiabortion doctors sued in a handpicked jurisdiction to have the FDA’s 2000 approval of mifepristone thrown out on the grounds that the approval process was bad.

None of the doctors have ever prescribed abortion pills, but their flimsy claim for standing was the possibility that if lots of patients start having adverse reactions to mifepristone, the docs and the medical system would be overwhelmed with patients. This is damned unlikely since only a tiny percentage of patients using mifepristone have any negative side effects and mifepristone is safer than penicillin and Viagra.

The 2-1 decision yesterday by a three-judge panel of the Fifth Circuit Court of Appeals didn’t address the substance of the case, but only decided the status of the nationwide stay on distribution of mifepristone that was handed down by Trump appointee and bad rightwing law facilitator Judge Matthew Kacsmaryk in April. Kacsmaryk found that the FDA had done it all wrong in approving mifepristone 23 years ago, but the appeals court dropped that injunction, finding it would likely fail because the statute of limitations had passed for yanking mifepristone off the market altogether. It also upheld the FDA’s 2019 approval of a generic version of the drug.

But the Fifth Circuit also held that the doctors’ challenges against several more recent regulations concerning mifepristone were likely to succeed when the full case is heard, so it kept in place Kacsmaryk’s stay on FDA regulations since 2016, which allowed mifepristone to be prescribed without an in-person doctor’s visit, and for the drug to be delivered to patients by mail so they can take the pill at home.

And in an interesting little detail, the decision sidestepped the plaintiffs’ attempt to invoke the 19th-Century Comstock Act to ban delivery of the drug by mail, since they had already voided the FDA’s 2021 decision to allow mail delivery. Fans of Gilded Age jurisprudery will no doubt be disappointed.

Again, because of the Supremes’ stay in April, none of those restrictions will go into effect until the case is heard by the Supreme Court anyway, so for now mifepristone will still be available. As Chris Geidner explains at Lawdork,

the Fifth Circuit’s decision would go into effect either if the Supreme Court doesn’t take up the case on appeal or if it takes the case and affirms the Fifth Circuit.

Far-right Trump appointee James Ho partially joined the decision, but he partially dissented against against it, saying he’d have upheld Kacsmaryk’s original decision in full, finding the 2000 approval illegal for all time, even though the case at hand only addresses the preliminary injunction, not the substance of the case, you dipshit.

Ho also thought that hell yes, the FDA’s 2021 rules violated the Comstock Act, even though that law hasn’t been enforced in forever, because America was Great Again in the days of robber barons.

Even more ridiculously, Ho even explained that the antiabortion doctors would face definite injury if mifepristone remains legal, explaining they would suffer a “conscience injury,” and what’s more, an “aesthetic injury,” because golly, fetuses are just so lovely to see.

Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. Doctors delight in working with their unborn patients—and experience an aesthetic injury when they are aborted.

That is one of the stupidest passages ever written in a fucking ruling handed down in a real American court. This man is a lifetime appointee to the federal courts, and while his is a dissenting view, that is nonetheless what passes for legal reasoning.

We may be doomed.

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[Lawdork / NYT / Fifth Circuit decision / Photo (cropped):  Ted Eytan, Creative Commons License 2.0]

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