Fifth Circuit barely limits ridiculous anti-mifepristone ruling

In other words, the Fifth Circuit did Fifth Circuit things.

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.

See here, here, and here for the background. Some of the coverage I’ve seen has put the focus of the ruling on the injunction against the 2000 approval of mifepristone, which is the one thing the Fifth Circuit stayed. But that really isn’t the main feature of this ruling, it’s the acceptance of so much of Kacsmaryk’s bonkers interpretation of standing as well as his wingnut-infused rejection of the science.

That’s the big picture. You can get more detail here, and Chris Geidner has a good thread here. Remember also, that Washington court ruling, which directly contradicts this one, and which Slate’s Mark Joseph Stern says offers the FDA the perfect opening to just follow what the Washington court ordered, as it “more explicitly obligates the agency to maintain mifepristone access in most states where abortion remains legal”.

This mess is now on SCOTUS’ doorstep, as the Justice Department is seeking emergency relief. I assume they will take action, but we saw how pusillanimous they were with SB8. Unless SCOTUS steps in by the end of the day today, access to mifepristone will be severely curtailed even as the nationwide injunction is put on hold. It’s chaos, it’s a terrible ruling for the pharmaceutical industry, and they have taken notice. We’ll see what comes of that. NBC News, NPR, Slate’s Dahlia Lithwick, Daily Kos, and the Trib have more.

UPDATE: Clarification from Washington:

Judge Thomas Rice in the eastern district of Washington responded Thursday to government lawyers asking how they should comply with contradictory rulings on mifepristone that both came down Friday evening, one of which Rice wrote.

He told them that, regardless of the ruling out of Texas, the government must comply with his order to keep mifepristone available as usual in the 17 states plus Washington D.C. that are part of the case.

“That order is currently stayed and was not in effect at the time of this Court’s preliminary injunction,” he said of Judge Matthew Kacsmaryk’s ruling, which had stayed the Food and Drug Administration’s (FDA) approval of mifepristone. Aspects of Kacsmaryk’s ruling were stayed by the Fifth Circuit Court of Appeals Thursday morning. “Under these circumstances, because the Court has jurisdiction over the parties before it and limited its preliminary injunction only to the Plaintiff States and the District of Columbia, this Court’s preliminary injunction was effective as of April 7, 2023 and must be followed by Defendants.”

He added that “irrespective of the Northern District of Texas Court ruling or the Fifth Circuit’s anticipated ruling,” defendants are prohibited from “altering the status quo and rights as it relates to the availability of Mifepristone under the current operative January 2023 Risk Evaluation and Mitigation Strategy under 21 U.S.C. § 355-1 in Plaintiff States and the District of Columbia.”

Okay then.

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