On Wednesday, the far-right United States Court of Appeals for the Fifth Circuit handed down an opinion claiming that mifepristone, an abortion drug that has been legal in the United States since 2000, should effectively be banned, at least for several months. The case is Alliance for Hippocratic Medicine v. FDA.
The single most important thing to understand about this decision is that it has no effect whatsoever, at least for the time being. Mifepristone remains legal, and it will remain legal unless the Supreme Court signs on to this effort to ban the drug.
That’s because last April, after the Fifth Circuit launched a similar attack on this medication, the Supreme Court handed down a temporary order blocking this first attempt to restrict access to the drug. Notably, that April Supreme Court order provides that mifepristone will remain legal while this case works its way back to the justices. So, at least for the moment, the Fifth Circuit panel that heard the Alliance case is stripped of any power to ban the drug.
The legal arguments against mifepristone are wholly without merit. As attorney Adam Unikowsky, a former law clerk to the late conservative Justice Antonin Scalia, has written, “if the subject matter of this case were anything other than abortion, the plaintiffs would have no chance of succeeding in the Supreme Court.” And, given the Court’s April order, it does not appear likely that this case will succeed despite the fact that it involves abortion.
On its face, the Fifth Circuit’s decision does not purport to ban mifepristone in its entirety. Though the plaintiffs in this case — anti-abortion doctors and organizations that represent them — asked the court to do so, even the Fifth Circuit conceded that it lacks the authority to ban the drug outright. The FDA approved mifepristone for use in the United States in 2000, and the statute of limitations for challenging such an approval is six years.
Instead, the Fifth Circuit’s decision…
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