Abortion Update

Tonight, a quick update if you’re trying to stay current on the fast-moving legal proceedings around medication abortion:

Around midnight Wednesday night, the 5th Circuit Court of Appeals ruled on DOJ’s request for a stay. DOJ had asked the court to extend the seven days that Judge Matthew Kacsmaryk had allowed before his decision preventing pregnant people in the U.S. from using the abortion drug mifepristone would go into effect. The ruling, when it came, was not a good one.

The 5th Circuit’s ruling isn’t a final decision on the merits of the case. It’s about whether Judge Kacsmaryk’s ruling can take effect while the litigation is ongoing. The 5th Circuit said yes, and no. Mifepristone stays on the market—the court said the plaintiffs were most likely out of time to challenge the 2000 FDA decision that approved it. But it permitted the reinstatement of pre-2016 regulatory requirements that include mandating three office visits for a patient to be treated with the drug and prohibit mailing the drug. That means that, despite data showing the drug is overwhelmingly safe, pregnant people cannot use it in the privacy of their own homes. People who live in medical deserts, where there is not ready access to ob-gyn medical care—a situation increasingly common in rural areas and conservative states—may be foreclosed from obtaining safe, effective medication abortion. Even where there is access, the 5th Circuit decision authorizes use of mifepristone only through the seventh week of pregnancy, long before most people know they are pregnant.

This is not the state-by-state decision-making process the Supreme Court said would exist after its decision in Dobbs. Instead, it’s just one judge in Amarillo, Texas, telling people across the country what they can and can’t do.

Less than 12 hours after the 5th Circuit ruled, DOJ said it would seek review of the decision in the Supreme Court, asking for a stay of the entirety of Judge Kacsmaryk’s order. Attorney General Merrick Garland said, “The Justice Department strongly disagrees with the Fifth Circuit’s decision in Alliance for Hippocratic Medicine v. FDA to deny in part our request for a stay pending appeal. We will be seeking emergency relief from the Supreme Court to defend the FDA’s scientific judgment and protect Americans’ access to safe and effective reproductive care.”

Later in the day, Judge Thomas Rice, the federal judge in Washington state, weighed back in. He wrote that his order, which went into effect on April 7, 2023, must be followed by the defendants. That order keeps mifepristone on the market in the 17 states and the District of Columbia that were plaintiffs in the lawsuit in front of him, with none of the restrictions in Judge Kacsmaryk’s order. DOJ had asked for Judge Rice’s help in understanding how they were supposed to comply with his order. Lawyers call this a “split in the circuits,” the kind of case that tends to get to the Supreme Court on a fast track (although this one was likely already headed there in any event). Judge Rice’s opinion helps us understand the issues and makes it clear that there is a direct conflict between his opinion and the Texas ruling on the scope of any injunction, so that they can’t both stand:

“…if the Texas district court’s order takes effect, the order would—of its own force and without any further action by FDA—stay the effectiveness of FDA’s prior approvals of mifepristone nationwide….

This Court declined to issue a nationwide injunction and only entered a preliminary injunction as it applies to Plaintiff States and the District of Columbia….

While courts have the authority to issue nationwide preliminary injunctions, the Ninth Circuit cautions they are for ‘exceptional cases’ that have proof of ‘an articulated connection to a plaintiff’s particular harm’….District judges must require a showing of nationwide impact or sufficient similarity to the plaintiff states to foreclose litigation in other districts.”

You can read the full ruling here.

The original Women’s March was a worldwide protest on January 21, 2017, the day after Donald Trump was inaugurated. It was a day of both fear and solidarity, with knitters (I was one of them) turning out the ubiquitous pink hats that turned Donald Trump’s comment, captured on the Access Hollywood tape, that he grabbed women by the p***y into a protest statement. There was concern that Trump, who used sharply misogynistic rhetoric during the campaign, would implement policies that would threaten the rights of women.

Those fears were not misplaced. If the plaintiffs and the judge in the mifepristone case get their way, women will lose even more of their ability to make the most important decisions affecting their own lives and their own bodies. The slide down the slippery slope will be well underway. Welcome to Gilead.

This morning, I was a guest on BBC’s Americast podcast, where I tried to explain the state of abortion “rights” in America to the Brits and realized (well, we already knew) that absolutely nothing makes legal, or even political, sense. It’s all about putting abortion out of reach of pregnant people in America, in as many ways as possible, with no concern for the impact on their health (or legal rules and precedent). None of this is pro-life.

You can find the podcast here if you’re interested.

Also today, Florida Governor Ron DeSantis signed a bill that would ban most abortions after six weeks. He signed the law just after it cleared the legislature in the afternoon, but with no fanfare or publicity. There wasn’t even an announcement that he’d signed it until after 11 p.m. Perhaps it’s too much to have even a glimmer of hope here, but if Republicans are so afraid of the measures they are passing that they don’t think they can withstand the light of day, that means they know they aren’t reflecting the views of the people who elected them to serve.

Meanwhile, Trump was deposed by the New York Attorney General’s office today in her civil case alleging corporate misconduct. There is news that Special Counsel Jack Smith is taking a serious look at potential wire fraud charges connected to “the big grift”—Trump’s fundraising off of the Big Lie. And, as Dominion Voting Systems’ defamation suit against Fox News tees off, E. Jean Carroll’s defamation case against Trump is prepared to start right behind it. There’s a lot of critically important legal news developing.

We’re in this together,

Joyce