The U.S. Court of Appeals for the Fifth Circuit has long been at the center of high-profile challenges, and a wave of Trump appointees has pushed it to the leading edge of potent policy decisions.
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The United States Court of Appeals for the Fifth Circuit is almost certain to be skeptical of the steps taken to ease access to the abortion drug mifepristone.
The latest battle over a widely used abortion drug is set to play out on Wednesday before a conservative appeals court in New Orleans that has become the testing ground for some of the most contentious policy fights in the nation.
A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit will weigh in on the legal status of the medication, mifepristone, used in more than half of recent abortions in the United States.
“By virtually any measure, it is the most conservative appeals court in the country,” said Stephen I. Vladeck, a law professor at the University of Texas.
The court, which has jurisdiction over Texas, Louisiana and Mississippi, is almost certain to be skeptical of steps the Food and Drug Administration has taken to ease access to mifepristone, part of a two-pill regimen used in medication abortion. It has long been at the center of high-profile challenges to measures backed by the Obama and Biden administrations, including gun restrictions and transgender rights, and the arrival of a wave of Trump appointees has pushed it to the leading edge of potent policy decisions.
In November, the Alliance for Hippocratic Medicine, an umbrella group composed of medical organizations and four doctors who oppose abortion, challenged the F.D.A.’s approval of the drug more than two decades ago.
The plaintiffs contend that mifepristone is unsafe and that the F.D.A.’s approval process was flawed. The agency, vigorously countering those claims, has said that the drug is safe and effective, pointing to a series of studies that have found that serious complications are rare and that less than 1 percent of patients need hospitalization.
In a preliminary ruling, a federal judge in Texas, Matthew J. Kacsmaryk, said that the F.D.A.’s approval of the drug should be suspended, removing mifepristone from the market.
But the Supreme Court last month temporarily blocked his decision as the appeal moves forward, a process that could take months as it winds through the courts. Access to the abortion pill will remain unchanged until the Supreme Court rules on the matter or declines to intervene.
A ruling by the Supreme Court could ensure full access to mifepristone, impose restrictions but stop short of sharply limiting availability or withdraw approval of the drug.
The merits of the case are still pending before Judge Kacsmaryk. Eventually, those, too, are likely to make their way to the Fifth Circuit and then to the Supreme Court.
The case could have far-reaching implications, curtailing access to abortion even in states where it is legal as well as undercutting the F.D.A.’s regulatory approval of other medications.
The Fifth Circuit has already proved receptive to abortion restrictions.
Last month, after the Biden administration appealed Judge Kacsmaryk’s ruling, a divided three-judge panel struck down the most sweeping parts of his decision but curbed distribution of the pill, undoing recent efforts by the F.D.A. to ease access. Those include allowing the pills to be sent by mail and prescribed by health care providers who are not doctors.
ImageJudge Matthew Kacsmaryk’s nomination hearing to the federal bench in 2017.Credit…U.S. Senate Committee on the Judiciary
In October 2021, it let stand a near-total ban on abortions in Texas. In 2018, it upheld a law in Louisiana that required doctors who provide abortions to have admitting privileges at nearby hospitals, a requisite that opponents said would have left the state with only a single abortion clinic.
For decades, the Fifth Circuit has had an outsize number of Republican-appointed judges, but its current makeup increasingly reflects President Donald J. Trump’s stamp on the judiciary, said Erwin Chemerinsky, the dean of the law school at the University of California, Berkeley.
“What makes the Fifth Circuit so stunning is not only that it’s dominated by Republican appointees but how conservative they are,” Mr. Chemerinsky said.
In February, it struck down part of a federal law that for nearly 30 years barred people subject to restraining orders for domestic violence from owning guns. In August, it blocked a government policy that would require doctors and hospitals to perform gender-transition procedures. And in March 2022, it curbed federal power to enforce laws preventing companies from deceiving investors.
Of the 16 active judges in the circuit, 12 are Republican appointees. Of those, half were appointed by Mr. Trump.
The three judges randomly assigned to the abortion pill case are two Trump appointees, Judges James C. Ho and Cory T. Wilson, and one appointed by President George W. Bush, Judge Jennifer Walker Elrod.
Judge Ho, a former clerk to Justice Clarence Thomas, was seated to the bench in 2017. In a concurring opinion a year later, Judge Ho deplored the “moral tragedy of abortion.” His conservative bona fides include serving as a solicitor general for Texas when it mounted a series of legal challenges to the Obama administration; working as chief counsel to Senator John Cornyn; and volunteering as a lawyer for First Liberty Institute, a conservative legal group that focuses on issues of religious liberty.
Before joining the appeals court in 2020, Judge Wilson served as a judge and state legislator in Mississippi, where he fiercely opposed abortion rights. He stated in a questionnaire in 2007 that he favored the “complete and immediate reversal” of Roe v. Wade and as an elected state official, he supported abortion bans and backed a bill that sought to criminalize abortion providers. He has consistently denounced the Affordable Care Act and pushed for tighter voting measures.
In 2014, Judge Elrod, who was confirmed in 2007, upheld a Texas law that imposed more restrictions on abortions, including by requiring doctors to follow what critics called an outdated and less effective regimen in prescribing abortion-inducing drugs. In January, she wrote the majority opinion when the court struck down a federal ban on bump stocks, attachments that enable semiautomatic rifles to fire rapidly in succession.
That the Fifth Circuit is often at the forefront of controversial decisions reflects, in part, the ideological makeup of its judges and its geographic expanse of conservative states, which produce a steady stream of challenges to policies enacted under Democratic administrations.
(To be sure, courts in California have often been viewed as a receptive field of battle for liberal organizations waging war against the Trump administration on matters like immigration, the environment and voting rights.)
An unusual case assignment system in Texas also plays a role.
In many federal appeals courts, including the United States Court of Appeals for the Ninth Circuit, long known as a more liberal circuit, cases are assigned by lottery. Although lawyers can try to file in a court where they have a shot at landing before a sympathetic judge, they cannot select a particular jurist.
But some Texas divisions have only a single judge, effectively allowing parties to choose who oversees their case. One such division is Amarillo, a midsize city in the Texas Panhandle, where Judge Kacsmaryk presides over all civil cases, including the one filed by the coalition of anti-abortion plaintiffs.
“To a greater degree than any other circuit, they are often able to handpick the district court judge,” Mr. Vladeck said.
In August, shortly after the Supreme Court overturned the constitutional right to an abortion, the Alliance for Hippocratic Medicine incorporated in Amarillo. It includes five medical groups opposed to abortion that are from outside the state. This fall, the coalition filed suit in Amarillo, ensuring the case would come before Judge Kacsmaryk.
Before being nominated by Mr. Trump to the federal bench, Judge Kacsmaryk had written critically of Roe v. Wade and had worked for First Liberty Institute.
Source: nytimes.com
