A federal appeals court said on Monday that a lawsuit launched by anti-abortion organizations seeking to outlaw the abortion drug mifepristone nationally would be considered the following week by a panel of three virulently anti-abortion justices.
On May 17, the 5th U.S. Circuit Court of Appeals panel in New Orleans will hear arguments from the Biden administration, which will likely ask them to reverse a ruling that temporarily froze the federal government’s approval of mifepristone.
The administration will appeal to Circuit Judges James Ho, who has referred to abortion as a “moral tragedy,” Jennifer Walker Elrod, who upheld a Texas law making it more difficult for abortion clinics to operate in the state, and Cory Wilson, a supporter of abortion bans as a Mississippi state legislator.
Requests for comment from the U.S. Food and Drug Administration, which is listed as the defendant in the case, were not immediately fulfilled.
Ho did not respond to a request for comment right away. A Wilson staff member declined to comment on ongoing cases, while an Elrod staff member pointed Reuters toward the court’s clerk’s office, which declined to comment.
Mifepristone is a component of the two-drug pharmaceutical abortion regimen utilized in more than half of abortions performed in the United States.
Abortion opponents, led by the newly established Alliance for Hippocratic Medicine, said in a lawsuit last year that mifepristone is hazardous and that the FDA’s 2000 approval of it was illegal. The majority of scientific investigations have shown that the medicine, which is taken by millions of women, is safe.
Last month, U.S. District Judge Matthew Kacsmaryk in Amarillo, Texas, backed with the plaintiffs and halted the approval of mifepristone while their action is ongoing because he believed they had a good chance of winning. That ruling was suspended by the U.S. Supreme Court, thus mifepristone is still accessible while the matter is being appealed.
After the Washington Post reported that the then-nominee failed to disclose to the U.S. Senate ahead of his confirmation hearing a law review article he helped write that criticized protections for people seeking abortions, Ho last month also spoke to the Dallas chapter of the conservative Federalist Society in defense of Kacsmaryk, whom he called a friend.
Elrod, who was chosen by previous Republican president George W. Bush, authored the majority opinion in a 5th Circuit ruling that invalidated a significant portion of the Obamacare health insurance legislation in 2019.
Wilson, another Trump appointment, voted to outlaw abortion after the detection of fetal heart activity, or at around six weeks.
If an appeal is unsuccessful, the losing side may request an en banc review from the whole 5th Circuit, which includes 12 Republican appointments among its 16 currently sitting judges, and then appeal to the Supreme Court.
