The New Orleans-based appeals court panel that will oversee the next stage in the blockbuster legal challenge to the availability of medication abortion drugs is made up of three Republican appointees, including one Trump nominee who has called abortion a “moral tragedy.”
Circuit Judges James Ho and Cory Wilson, both Trump nominees, will hear the oral arguments on May 17, alongside Judge Jennifer Walker Elrod, an appointee of George W. Bush.
The lawsuit was brought by anti-abortion doctors and medical organizations who allege the US Food and Drug Administration broke the law when it approved the medication abortion drug mifepristone more than two decades ago.
Last month, US District Judge Matthew Kacsmaryk agreed with their arguments and ruled that the approval of the drug should be suspended.
However, his ruling was put on hold by the Supreme Court on April 21 and it will remain on hold until the case goes back to the high court, regardless of how the 5th US Circuit Court of Appeals rules on the merits.
Ho, a former Texas solicitor general, is considered one of the most conservative and strident members of the 5th Circuit, having described abortion as a “moral tragedy” in a 2018 concurring opinion.
In a 2019 concurring opinion, Ho also said that a trial judge’s ruling – which struck down a 15-week abortion ban and which was affirmed by the 5th Circuit under the then-standing Roe precedent – displayed “an alarming disrespect for the millions of Americans who believe that babies deserve legal protection during pregnancy as well as after birth, and that abortion is the immoral, tragic, and violent taking of innocent human life.”
The 5th Circuit is considered one of the most conservative in the country has consistently ruled against the Biden Justice Department.
Wilson earlier this year wrote a majority circuit opinion that said that a federal law that bars gun ownership by people under domestic violence was unconstitutional.
Elrod penned an opinion last month that struck down the federal ban on bump stocks, which are attachments that essentially allow shooters to fire semiautomatic rifles continuously with one pull of the trigger.
The medication abortion case is another hugely consequential case to go through the circuit. Mifepristone – the drug being targeted in the lawsuit – is the first pill in the two-pill regimen for terminating a pregnancy. Medication abortion makes up more than half of all abortions obtained in the United States.
In filings last week, the Justice Department told the 5th Circuit that Kacsmaryk’s conclusions that the drug was unsafe rested “on a series of fundamental errors.”
“While FDA justified its scientific conclusions in multiple detailed reviews, including a medical review spanning more than 100 pages and assessing dozens of studies and other scientific information, the district court swept the agency’s judgments aside by substituting its own lay understanding of purportedly contrary studies, offering demonstrably erroneous characterizations of the record,” the DOJ’s filing said.
The department’s opponents in the case will file a response later on Monday.