The nation’s most conservative appeals court held a hearing Wednesday over a lawsuit that could revoke FDA approval of an abortion drug.
A three-judge panel on the United States Court of Appeals for the Fifth Circuit heard oral arguments in the case. All three judges were appointed by conservative presidents: Judge Jennifer Walker Elrod, who was appointed by President George W. Bush, and Judges James Ho and Cory Wilson, who were appointed by President Donald Trump.
Judges will evaluate whether the FDA followed proper protocol when approving the abortion-inducing drug mifepristone and later when loosening restrictions.
The case, Alliance for Hippocratic Medicine v. FDA, was brought in November by Pro-Life medical associations and physicians and went all the way up to the Supreme Court last month. The high court has not yet considered the merits of the case but ruled that mifepristone can stay on the market until judges hear the full lawsuit.
If the Pro-Life side wins, the ruling would not change the status quo in Pro-Life states like Texas where the Right to Life of all preborn children is legally recognized, but in several other states without strong prohibitions on abortion, the decision would have a major impact on protecting more women and babies from the dangers of abortion pills.
Every abortion ends the life of the innocent preborn child, but chemical abortion is additionally dangerous for the pregnant mother. Studies show that 1 in 5 women experience an adverse event following a chemical abortion, the rate of complications for chemical abortions are four times higher than surgical abortions, and they require follow-up surgical abortion in 3-8% of cases. Chemical abortions take much longer and involve more bleeding and pain, and complications increase exponentially with the baby’s increasing gestational age.
In Wednesday’s hearing, the Biden administration’s attorney Sarah Harrington argued on behalf of the FDA and described the case as an “unprecedented judicial assault.” She continued, “we are absolutely disputing that many women will show up at the emergency room… Mifepristone is extremely safe.”
The FDA also argued that the doctors bringing the suit cannot claim that they were directly harmed by others prescribing mifepristone or forced to violate their conscious or religious beliefs in the past. All three judges demonstrated skepticism to this assertion. Attorney Jessica Elsworth for Danco Laboratories, a producer of mifepristone, echoed claims made by the FDA and spoke on the FDA’s expansions on the drug stating, “there is zero difference to patient safety.”
Attorney Erin Holly, representing Alliance for Hippocratic Medicine, said the FDA put politics above women’s health and preborn children’s lives when it failed to follow its own protocol to approve and expand the use of the drug. Mifepristone was marketed by labeling pregnancy an illness, otherwise the drug could not have been approved. The FDA then “stripped away nearly every safeguard and did not have a sufficient reason for doing so,” responded Holly.
Holly debunked the pro-abortion attorneys’ statements that doctors in this case have not been harmed by the FDA’s actions. Holly reflected, “doctors have been forced to participate in and complete elective abortions, contrary to their conscience.” In the drug’s initial approval, the FDA acknowledged that emergency room doctors are going to be part of the solution in cleaning up the mess that is left for women suffering from the harmful effects of chemical abortions. There is also a potential risk of harm that this may occur again as the drug continues to be on the market.
The Fifth Circuit’s ruling in this case has the potential to significantly change the abortion landscape across the nation. The judges have not hinted when they will rule, but Texas Right to Life will continue to monitor the case.