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Washington Examiner
Restoring America
17 May 2023


NextImg:Abortion pill appeals court hearing devolves into equating motherhood with disease

A trio of conservative federal judges on Wednesday took a skeptical look at arguments to keep the abortion drug mifepristone on the market, raising questions on whether lawyers for the pill's manufacturer were equating motherhood to "illness."

Judge James Ho, an appointee of former President Donald Trump , frequently sparred with Justice Department attorney Sarah Harrington and an attorney for the pill's manufacturer, Danco, who are fighting to keep the drug available in the country. The roughly two-hour hearing took place in the Louisiana-based U.S. Court of Appeals for the 5th Circuit, a notoriously conservative appeals court.

BIDEN'S DEBT GAMES ARE ALL PLAYED OUT
James Ho talks to family members before a Senate Judiciary Committee hearing on nominations on Capitol Hill in Washington, Wednesday, Nov. 15. Ho has been nominated to the United States Circuit Judge For The Fifth Circuit.
Carolyn Kaster/AP

Ho cited anti-abortion doctors' arguments that the Food and Drug Administration improperly characterized pregnancy as an illness to approve the drug. "When we celebrate Mother’s Day, are we celebrating illness?" Ho asked Danco attorney Jessica Ellsworth.

The hearing also started with Ho interrupting Harrington when she called the challenge to FDA's approval "unprecedented." Ho asked her to "focus on the facts of the case, rather than this sort of FDA-can-do-no-wrong" presupposition.

The panel, which was also composed of Republican-appointed Judges Jennifer Elrod and Cory Wilson, appeared sympathetic to anti-abortion plaintiffs who argue the FDA did not completely consider alleged safety problems with mifepristone when it first approved the drug in 2000 and when it added more policy changes that made the pill more accessible in the mid-2010s.

Harrington argued that anti-abortion doctors' allegations, specifically that they would likely need to help patients whose drug-induced abortions were incomplete, did not amount to any sort of injury that the court should recognize. Ellsworth also concurred with Harrington's point in her separate arguments before the judges.

"They don't describe the care that the doctor actually personally provided or when the event occurred. Was this something in 2003? Or was this something in 2016? Or is this something in 2020? It was the plaintiffs' burden to show standing, and they didn't do that," Ellsworth said.

Wilson, who is also a Trump appointee, said the FDA's broadening of mifepristone's availability in the mid-2010s created a greater likelihood that patients would show up in an emergency room to address complications.

“It just strikes me what FDA has done … you’ve made it much more likely that patients are going to go to the emergency room,” Wilson said.

“I don’t think any of that is right and that hasn’t been borne out by the evidence,” Harrington responded. “It’s very rare that they need actual surgical follow-up.”

The appeals court sessions Wednesday marked the latest round in the major fight over the drug used in more than half of all abortions in the United States. It also offered the public an opportunity to hear arguments on the merits of the case after a federal district court in Amarillo, Texas, initially heard the arguments in a closed-door hearing in March.

Mifepristone is the first drug in a two-step process used to terminate pregnancies in the early stages and is frequently used to treat miscarriages.

Mifepristone (Mifeprex) and Misoprostol, the two drugs used in a medication abortion, are seen at the Women's Reproductive Clinic, which provides legal medication abortion services, in Santa Teresa, New Mexico, on June 17, 2022. Mifepristone is taken first to stop the pregnancy, followed by Misoprostol to induce bleeding. - In the wake of Friday's ruling by the US Supreme Court striking down Roe v Wade and the federally protected right to an abortion, women from Texas and other states are traveling to clinics like the Women's Reproductive Health Clinic in New Mexico for legal abortion services under the state's more liberal laws. - RESTRICTED TO EDITORIAL USE (Photo by Robyn Beck / AFP) / RESTRICTED TO EDITORIAL USE (Photo by ROBYN BECK/AFP via Getty Images)
ROBYN BECK/AFP via Getty Images

The American Medical Association and other leading medical groups have warned a win for the challengers could usher in sweeping ideological challenges to medications from contraception to vaccines. They say it could scare away companies from developing and marketing new medicines out of fear the FDA approval could one day be overturned through litigation.

Erin Hawley, the lawyer for Alliance Defending Freedom that is representing the anti-abortion doctors, pressed the judges to reconsider the decision they issued in the preliminary review of the case. Rather than reinstating pre-2016 restrictions on the drug, she called on the court to revoke approval of mifepristone entirely.

"This causes severe harm to women. As the medication guide indicates, there can be sepsis, you can lose your life, there are a number of harms caused to women by mifepristone as well as to plaintiff doctors in this case," Hawley said.

NARAL Pro-Choice America President Mini Timmaraju issued a statement Wednesday accusing the judges and plaintiffs in the case of being "extremists" attempting to "push a backdoor abortion ban through our courts without a fight."

"That’s why NARAL and our 4 million members are mobilizing against this dangerous attack on our most fundamental freedoms — and we won’t back down," Timmaraju added.

Elrod, an appointee of former President George W. Bush, has upheld a series of state abortion restrictions in years past. Ho and Wilson also exhibit a lengthy background in conservative politics.

Ho called abortion a "moral tragedy" in a 2018 opinion, and Wilson has voted to uphold a Mississippi ban on abortion at 15 weeks of pregnancy.

The panel of judges is expected to take weeks, if not months, to come to a final decision on the case. Last month, the Supreme Court froze U.S. District Judge Matthew Kacsmaryk's order that would have threatened access to mifepristone nationwide, allowing the case more time for full arguments at the appeals court level.

CLICK HERE TO READ MORE FROM THE WASHINGTON EXAMINER
Justices who are slated to join Alito's majority opinion overturning the 1973 case of Roe v. Wade and the 1992 case Planned Parenthood V. Casey include Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.
P_Wei/Getty Images/iStockphoto

Katie Glenn Daniel, state policy director for Susan B. Anthony Pro-Life America, told the Washington Examiner ahead of the hearing that the dispute is not about abortion case law, rather, "This is an agency case."

"So when this is framed as an abortion case, it's not very accurate to what the case is about. The case is about 'did the FDA do their job?' Is there new information that when presented calls for a modification of the approval? And we think there very clearly is," Daniel said.