Appeals Court Looks Poised to Block Abortion Pill Access

Three-judge panel appears sympathetic to arguments from challengers of mifepristone
By Arden Dier,  Newser Staff
Posted May 18, 2023 8:25 AM CDT
Abortion Pill Access Looks to Be at Risk in Appeals Court
Erin Hawley, lead attorney for Alliance Defending Freedom, takes questions from the media following a 5th Circuit Court of Appeals hearing in New Orleans, Wednesday, May 17, 2023.   (AP Photo/Stephen Smith)

Federal judges to rule on nationwide access to abortion pill mifepristone seem poised to "side with a lower court decision to block access to the drug," CNN reports. The judges of the 5th US Circuit Court of Appeals in Louisiana heard arguments from the Justice Department and drugmaker Danco Laboratories as well as from those challenging the FDA's approval of the drug on Wednesday. As NBC News reports, the three-judge panel appeared skeptical of the argument that the Alliance for Hippocratic Medicine did not have legal standing to challenge the FDA's 2000 approval. The judges also questioned whether the FDA had done due diligence before expanding access to mifepristone in recent years. The FDA maintains mifepristone is safe, saying "study after study has shown that serious adverse events are exceedingly rare."

DOJ lawyer Sarah Harrington argued that doctors with the Alliance for Hippocratic Medicine, who are concerned about treating patients who suffer complications from mifepristone, don't have to do so against their will as they could opt out for reasons of religion or conscience, per NBC. A lawyer for Danco, Jessica Ellsworth, said the doctors had made "non-specific statements untethered to actual facts" about the cases, and in some cases it was unclear whether patients had even taken mifepristone. On the opposing side, lawyer Erin Hawley said doctors had been forced to be "complicit" in abortions. She said she wasn't sure if doctors had tried transferring cases to other doctors, but added any involvement in treatment would subject them to "irreparable harm."

"Hawley faced fewer questions and interruptions" than the other attorneys, per NBC. She was also "questioned far less aggressively," per the Washington Post. All three judges—Trump appointees Cory Wilson and James Ho, and Jennifer Walker Elrod, a nominee of President George W. Bush—have supported abortion restrictions in the past, with Ho referring to abortion as a "moral tragedy" in 2018, per the AP. The panel is reviewing a ruling out of Texas in which US District Judge Matthew Kacsmaryk, another Trump appointee, suspended the FDA's approval of mifepristone, saying it came after "significant political pressure." Danco referred to the ruling as an "unprecedented judicial assault," a comment Elrod criticized Wednesday. "Do you think its appropriate to attack the district court personally in that way?" she asked of Ellsworth, per NBC. (More mifepristone stories.)

Get the news faster.
Tap to install our app.
Install the Newser News app
in two easy steps:
1. Tap in your navigation bar.
2. Tap to Add to Home Screen.