For context, the plaintiffs are claiming that the FDA was wrong to approve the abortion drug mifepristone back in 2000 under the regulatory pathway it used because, they argue, pregnancy isn’t an illness (and it’s offensive to suggest otherwise). Ho clearly embraced this argument in his questioning and didn’t even remotely feign objectivity.
Jessica Ellsworth, the lawyer for Danco, the pill’s brand-name manufacturer, responded that the FDA used the words “illness, condition, and disease” interchangeably, so it’s wrong to say the agency was calling pregnancy an illness. Still, pregnancy can be life-threatening (even more so for people living in states with abortion bans!) and for every person who dies from pregnancy, another 70 women come close. As I’ve written previously, pregnancy is not a benign event.
After this exchange, George W. Bush-appointee Judge Jennifer Elrod decided to repeat the anti-abortion claim that mifepristone affects the “nutrition” of the embryo or fetus. District Judge Matthew Kacsmaryk also cribbed that language from the plaintiffs and then plopped it in his extremely unscientific April 7 opinion, writing that “Mifepristone—also known as RU-486 or Mifeprex—is a synthetic steroid that blocks the hormone progesterone, halts nutrition, and ultimately starves the unborn human until death.”
Kacsmaryk’s opinion was widely condemned not only for its language, but also for his claiming to have the power to make the FDA pull a drug from the market. But Elrod used part of her time in Wednesday’s hearing to ask if Ellsworth thought the pill manufacturer’s legal briefs were too mean to Kacsmaryk. Elrod quoted the brief and asked if it was inappropriate to say that the ruling was an“unprecedented judicial assault” with a “relentless one-sided narrative.”
Here’s a snippet of the exchange:
Judge Elrod: I’m wondering if you would have had more time and not been in a rush and probably exhausted from this whole process, would those have been statements that would have been included in your brief?
Ellsworth: Your Honor, I think those statements reflect our view that the district court court was very far outside the bounds of established…
Judge Elrod: So you think it’s appropriate to attack the district court personally in the case in that way, not just the rulings?
Ellsworth: Your honor, I don’t think that those remarks, any of them, were intended as any sort of personal attack. They were an attack on the analysis and the reasoning.
It’s pretty rich to see a judge try to defend the sanctity of the process, here, when this entire lawsuit is a farce. It was filed 22 years after the FDA approved the drug—only after Roe was overturned—and in a Texas district with a single anti-abortion judge, whose cases funnel up to this very conservative appeals court. In other words, the case has been rigged from the start.
It seemed clear from the arguments that this Fifth Circuit panel will eventually issue the same ruling the court handed down on an emergency basis last month, which would end telehealth appointments for medication abortion and shorten the time period during which people can take it. A ruling isn’t expected for several weeks, if not months.
The case would go back to the Supreme Court before any changes would take effect—a process that will itself take months—but SCOTUS would, unfortunately, be working off an opinion written by anti-abortion activist judges like Ho and Elrod. Stay tuned and stay vigilant, everyone.
