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The roughly two hours of oral arguments that an extremely conservative appeals court heard Wednesday in a blockbuster abortion pill case suggested that the judges were not buying the Biden administration’s arguments for why courts should not second guess how the government has regulated a medication abortion drug.
The appeals court is considering whether to uphold a federal trial court’s opinion that would suspend the drug, mifepristone – the highest-stakes legal dispute over abortion since the Supreme Court overturned Roe v. Wade last year.
Wednesday’s hearing featured several tense exchanges between the three GOP appointees and lawyers for the Justice Department and Danco Laboratories, a manufacturer of mifepristone that is also defending its approval.
The stakes of the case are incredibly high, medication abortion is the most common form of abortion in the United States. The availability of abortion pills, and how the US Food and Drug Administration has made the drug easier to obtain via telemedicine, have been a crucial tool for abortion providers in states whether the procedure remains legal, as their clinics have been overwhelmed by out-of-state patients traveling from places where abortion is illegal or severely restricted.
The 5th Circuit is reviewing an April ruling from US District Judge Matthew Kacsmaryk that concluded the US Food and Drug Administration broke the law in how it approved the drug more than two decades ago. That ruling has been put on hold by the Supreme Court.
Here are takeaways from the hearing in New Orleans:
Bashing the FDA
In what were some of the most critical comments by the judges, the appellate panel signaled that it was deeply skeptical the arguments put forward by the government and its supporters that the scientific decisions of the FDA should not be second-guessed by the courts.
Circuit Judge James Ho, who was appointed by Donald Trump, showed his hostility to the idea of giving the FDA deference right from the beginning of the hearing, when he interrupted DOJ attorney Sarah Harrington’s opening remarks to question why the department was describing Kacsmaryk’s opinion as “unprecedented.”
“I’m just wondering why not just focus on facts of the case rather than have this sort of ‘FDA can do no wrong’ theme?” Ho said.
Ho later suggested that it was not a “very pro-science, pro-information, pro-intellectual curiosity” position for the FDA to reduce some of the reporting requirements for when the drug had an adverse effects while it was also relaxing some of the requirements for obtaining the pills.
“I don’t understand this thing, ‘the FDA can do no wrong,’” Ho said at another point, as he ticked off unrelated controversies at the agency. “We are allowed to look at the FDA just like we’re allowed to look at any agency.”
Ho was not the only judge on the panel who was not willing to accept without scrutiny how the agency exercised its expertise in regulating mifepristone. Circuit Judge Cory Wilson, who was also appointed by Trump, grilled the Justice Department attorney on whether the FDA was obligated to consider how its regulations allowing for the mailing of the drug were making it possible for people in states were abortion was illegal to obtain the pill.
