It went more or less as you’d expect from this dumpster fire of a court. I’ll link to a bunch of straight news coverage in a bit, but what you need is the news with some analysis and snark, so here you go. First, from TPM.
A panel of 5th Circuit Court of Appeals judges — all Republican appointees — unapologetically carried water for the anti-abortion litigants Wednesday during oral arguments in a case where those litigants are trying to get an abortion pill, mifepristone, yanked from the market.
“When we celebrated Mother’s Day, did we celebrate an illness?” Judge James Ho, a Donald Trump appointee, snarked, regurgitating a false argument by the anti-abortion doctor plaintiffs that the Food and Drug Administration classified pregnancy as an illness to rush mifepristone through the approval process.
But perhaps the comedic peak of the arguments came when George W. Bush appointee Judge Jennifer Walker Elrod took time out to scold the lawyer for Danco, a manufacturer of mifepristone, for criticizing Judge Matthew Kacsmaryk, the anti-abortion district court judge that handed down the first ruling in the case. Kacsmaryk’s ruling has been widely panned, including by his fellow judges, as the latest in a series of nakedly partisan decisions.
“Your filings have been excellent, however I am concerned about some rather unusual remarks in the filings — these are remarks we don’t normally see in briefing from very esteemed counsel that talk about the district court,” Elrod said, affecting a dramatic tone to read phrases including that the district court “defied long-standing precedent” and that the court’s injunction was “an unprecedented judicial assault.”
“I’m wondering if you would have had more time and not been under a rush and probably exhausted from this whole process, would those have been statements that would have been included in your brief?” she asked.
When Danco’s lawyer pushed back, saying that the language reflected the unprecedented nature of the case, Elrod took an incredulous tone: “So you think it’s appropriate to attack the district court personally in the case in that way.” Ho soon jumped in to continue the beratement.
The three-judge panel, rounded out by Trump appointee Judge Cory Wilson, left little mystery as to how it will ultimately rule. The judges asked questions premised on the myth that mifepristone is sending floods of women to the emergency room, prompting the Department of Justice lawyer to frequently remind the judges that the drug is incredibly safe. Ho railed against the FDA, listing a series of supposed errors it made unrelated to the abortion case, seemingly to make the case that judges should overturn its experts’ decisions.
And here’s Slate.
Nothing these intellectual Lilliputians do will even matter. The Supreme Court has already decided that the 5th Circuit cannot be trusted with this case: In April, it froze the court’s previous decision stringently limiting access to mifepristone, expressly maintaining the freeze until the justices themselves take further action. Elrod, Ho, and Wilson are howling into the wind; they have no power to change a thing about federal regulation of medication abortion. The adults in the room have already put them in time-out. And rather than demonstrate that they can judge responsibly, they seized on Wednesday’s hearing to throw a combination temper tantrum/gaslight party. No lessons have been learned, no maturity acquired. This time-out probably isn’t ending anytime soon.
Sarah Harrington (for the FDA) and Jessica Ellsworth (for Danco) did an amazing job handling a comically hostile bench. But what was the point? Nobody seriously expects these robed ideologues to do their job with a modicum of integrity. Here are a few lowlights of the hearing:
•Ho credulously repeated the plaintiffs’ false claim that the FDA smuggled through mifepristone by calling pregnancy a “life-threatening illness.” (This argument rests on the lie that mifepristone went through “expedited review,” which Ho also parroted.) He asked Harrington angrily: “When we celebrated Mother’s Day, did we celebrate an illness?”
•Elrod, with evident exasperation, castigated the FDA for failing to produce a complete administrative record for the case—which, as Harrington explained, would require lawyers to compile for the court “hundreds of thousands of pages” going back to the 1990s. In response, Elrod suggested that the government was unscrupulously keeping it “a secret.”
•Wilson asserted that, by allowing medical professionals other than doctors to prescribe mifepristone, the FDA made it “much more likely” that patients will need emergency care, including surgery. (He literally just made this up.)
•Elrod suggested that Danco Laboratories should spend countless hours and resources to prepare for a judicial imposition of draconian restrictions on mifepristone just in case the court chose to do so, dismissing any costs as a minor “inconvenience.” (This, of course, completely ignored the Supreme Court’s order, which freed the defendants from this very obligation.) She also suggested, without evidence, that Danco may be complicit in smuggling the pills into states where they are banned.
•Ho read aloud random people’s criticisms of the FDA and made Ellsworth respond to them, then declared that federal courts should override the FDA’s scientific determinations because the agency isn’t trustworthy.
•Elrod chastised Ellsworth for calling Kascmaryk’s decision an “unprecedented judicial assault” in her brief, calling the rhetoric “far outside the bounds of established [criticism]” and a “personal attack” on Kacsmaryk. She then asked Ellsworth to retract the statements and apologize.
These are not serious people. This is not how real judges conduct themselves. This was barely a judicial proceeding. It was a struggle session in which three anti-abortion zealots yelled at attorneys who have already prevailed in this case once at the Supreme Court. Their rage should have been aimed at SCOTUS, but it’s not a good look for lower courts to trash-talk their superiors, so they redirected it to Harrington and Ellsworth instead.
We’ll find out soon enough, I guess. It’s going to be yet another bumpy ride. The Trib, the NYT, CNN, and Courthouse News have more, with a nice bit of live tweeting from Raffin Melkonian if you still need more.