Last night, when much of the nation was asleep, the unusually right-wing United States Court of Appeals for the Fifth Circuit issued its closely watched decision on the legality of mifepristone, a common abortion drug.
The good news for abortion providers and their patients is that even this Fifth Circuit panel realized that Matthew Kacsmaryk, the Trump-appointed judge who attempted to ban mifepristone nationwide, went too far. Mifepristone remains legal in the US, though the Fifth Circuit attempts to impose some restrictions on its use.
The bad news is that the decision is otherwise pure chaos. It imposes restrictions on mifepristone use that no court has the authority to impose. And it wrongly claims that the judiciary has the power to override the FDA’s scientific judgments.
The panel included Judges Kurt Engelhardt and Andrew Oldham, Trump appointees who are among the most reactionary judges in the entire federal system. A third judge, Judge Catharina Haynes, voted to temporarily block Kacsmaryk’s decision in its entirety until the case can be considered by another panel of judges that will have more time to weigh the case. But her vote was in the minority, so Engelhardt and Oldham’s approach prevailed, at least in the Fifth Circuit.
Realistically, this Fifth Circuit decision is unlikely to matter in the long run. The Justice Department will almost certainly bring this case to the Supreme Court, seeking an order that blocks Kacsmaryk’s decision in its entirety.
The statute of limitations to file a lawsuit challenging the FDA’s approval of mifepristone, which happened 23 years ago, is six years. The Fifth Circuit’s decision recognizes that the Hippocratic Medicine plaintiffs waited too long to file a lawsuit challenging the 23-year-old approval of mifepristone, although it does so only reluctantly. Accordingly, the Fifth Circuit temporarily blocked Kacsmaryk’s attempt to suspend the FDA’s approval of mifepristone altogether.
But the…
Read the full article here
