Far-Right Fifth Circuit Judges Appear Determined to Remove Access to Abortion Pill Mifepristone

Abortion rights activists rallied outside the U.S. Supreme Court on April 14, after the Court temporarily preserved access to mifepristone, a widely used abortion pill, in an 11th-hour ruling preventing lower court restrictions on the drug from coming into force. (Probal Rashid / LightRocket via Getty Images)

The Texas case on the abortion pill mifepristone was back in court for oral arguments before the Fifth Circuit Court of Appeals in New Orleans on Wednesday. The three Republican-appointed judges aggressively questioned the attorneys defending access to mifepristone—not letting them finish a sentence or answer their questions—and utilized anti-abortion language and talking points that perpetuate misinformation. Meanwhile, the judges interacted amicably with the attorney representing anti-abortion plaintiffs trying to remove mifepristone from the market. The two-hour oral argument strongly indicated the judges were preparing to significantly limit access to mifepristone.

The three-judge panel selected to hear the appeal consisted of two anti-abortion Trump appointees: James Ho and Cory Wilson. In a 2019 decision, Ho wrote, “Abortion is the immoral, tragic and violent taking of innocent human life.” As a Mississippi state lawmaker, Wilson voted for a six-week abortion ban.

The third was a George W. Bush nominee Jennifer Elrod.

All three judges are listed on the Federalist Society website as contributors to the organization.

“It’s hard to have a more conservative panel, even on the uber-conservative Fifth Circuit,” tweeted Drexel law professor David Cohen.

Department of Justice attorney Sarah Harrington represented the FDA, and attorney Jessica Ellsworth of the law firm Hogan Lovells represented Danco, which makes Mifeprex, the brand-name mifepristone drug.

Representing the anti-abortion plaintiffs was Erin Morrow Hawley, also a Federalist Society contributor. Hawley is married to Senator Josh Hawley (D-Mo.), who has received campaign contributions from the district court judge in the case, Matthew Kacsmaryk—a Trump-appointed federal judge in Amarillo, Texas.

Before the court was the question of whether to impose a preliminary injunction, staying FDA approval of mifepristone from 2000 and subsequent modifications of the approval in 2016, 2019 and 2021.

In early April, Kacsmaryk ruled the FDA improperly approved mifepristone, setting off a chain of responses from various other courts. Five days later, on emergency appeal, the Fifth Circuit Court of Appeals issued a ruling limiting use of mifepristone to just seven weeks of pregnancy. The Department of Justice responded by filing an emergency appeal to the Supreme Court. In a shadow docket ruling late on Friday, April 21, the Supreme Court blocked the Fifth Circuit ruling from taking effect, allowing the abortion pill mifepristone to remain on the market under current rules until a final ruling in the case.

Do yourself a favor and just ignore the Fifth Circuit. They’ve earned it.

David Cohen

The Fifth Circuit judges asked a wide range of questions indicating basic misunderstandings about abortion medications, the role of the FDA and administrative law.

  • One judge suggested that allowing licensed medical professionals who are not doctors to prescribe mifepristone and allowing it to be mailed increases the risk of complications—which is not true.
  • Another asked about telemedicine providers mailing pills to people in states with bans.
  • Elrod repeated an anti-abortion talking point that mifepristone “cuts off nutrition” to an embryo or fetus.
  • She also demanded an apology from Ellsworth for a comment in Danco’s brief, characterizing the district court opinion as an “unprecedented judicial assault on a careful regulatory process” of the FDA.
  • One of male judges suggested that removing or restricting access to the only medication made by Danco from the market would not harm the company.
  • Many of the questions suggested that mifepristone was unsafe, despite reams of evidence proving the medication is safer than Advil or Tylenol.
Mifepristone is used in combination with another medication—misoprostol—to safely and effectively end early pregnancy. (Robin Marty / Flickr)

Cohen reminded his followers on Twitter, “DON’T WORRY. Whatever they decide will change absolutely nothing. Zero. Zilch. They have no power whatsoever here. Why? Because the Supreme Court has put all orders on hold in this case pending resolution in the Supreme Court (not the Fifth Circuit).”

Even before the arguments, Cohen summed it up in a final tweet: “So absolutely they’re going to ask terrible questions and write an awful opinion. But it will have no effect. None whatsoever. Because what the Supreme Court does in this case is what matters. So do yourself a favor and just ignore the Fifth Circuit. They’ve earned it.”

If the Fifth Circuit decides to restrict mifepristone, the Department of Justice will appeal to the Supreme Court, and the Court’s previous order allowing the medication to stay on the market while the case is pending will continue.

Any Fifth Circuit decision will have no bearing on the present availability of mifepristone, which is accessible by telemedicine in all 50 states through Aid Access. The organization Plan C has a comprehensive guide to finding abortion pills on their website at www.plancpills.org. (Select “Find Abortion Pills” and then select the state where you are located from the drop-down menu.) The website is continually updated and has all the latest information on where to find abortion pills from anywhere in the U.S.

Up next:

U.S. democracy is at a dangerous inflection point—from the demise of abortion rights, to a lack of pay equity and parental leave, to skyrocketing maternal mortality, and attacks on trans health. Left unchecked, these crises will lead to wider gaps in political participation and representation. For 50 years, Ms. has been forging feminist journalism—reporting, rebelling and truth-telling from the front-lines, championing the Equal Rights Amendment, and centering the stories of those most impacted. With all that’s at stake for equality, we are redoubling our commitment for the next 50 years. In turn, we need your help, Support Ms. today with a donation—any amount that is meaningful to you. For as little as $5 each month, you’ll receive the print magazine along with our e-newsletters, action alerts, and invitations to Ms. Studios events and podcasts. We are grateful for your loyalty and ferocity.


Carrie N. Baker, J.D., Ph.D., is the Sylvia Dlugasch Bauman professor of American Studies and the chair of the Program for the Study of Women and Gender at Smith College. She is a contributing editor at Ms. magazine. You can contact Dr. Baker at cbaker@msmagazine.com or follow her on Twitter @CarrieNBaker.