June 3, 2023

The latest battle over a widely used abortion drug will take place Wednesday before a conservative New Orleans appeals court that has become the testing ground for some of the most controversial policy battles in the country.

A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit will consider the legal status of the drug, mifepristone, used in more than half of recent abortions in the United States.

“Virtually by any measure, it’s the most conservative appeals court in the country,” said Stephen I. Vladeck, a law professor at the University of Texas.

The court, which has jurisdiction over Texas, Louisiana and Mississippi, is almost certainly skeptical of steps the Food and Drug Administration has taken to ease access to mifepristone, part of a two-pill regimen used in drug-induced abortion. . It has long been at the center of high-profile challenges to measures backed by the Obama and Biden administrations, including gun restrictions and transgender rights, and the arrival of a wave of Trump appointees has propelled it to the forefront of strong policy decisions.

In November, the Alliance for Hippocratic Medicine, an umbrella group made up of medical organizations and four doctors who oppose abortion, challenged the FDA’s approval of the drug more than two decades ago.

Prosecutors allege that mifepristone is unsafe and that the FDA’s approval process was flawed. The agency, which strongly contradicts these claims, has said the drug is safe and effective, pointing to a series of studies that have shown that serious complications are rare and that less than 1 percent of patients require hospitalization.

In a preliminary ruling, a Texas federal judge, Matthew J. Kacsmaryk, said the FDA’s approval of the drug should be suspended, removing mifepristone from the market.

But the Supreme Court last month temporarily blocked its decision as the appeal progresses, a process that could take months as it winds through the courts. Access to the abortion pill remains unchanged until the Supreme Court rules on this or refuses to intervene.

A Supreme Court ruling could guarantee full access to mifepristone, impose restrictions but not greatly limit its availability or revoke the drug’s approval.

The merits of the case are still pending before Judge Kacsmaryk. Eventually, those too will likely find their way to the Fifth Circuit and then to the Supreme Court.

The case could have far-reaching consequences, limiting access to abortion even in states where it is legal and undermining FDA approval of other drugs.

The Fifth Circuit has already proved receptive to abortion restrictions.

Last month, after the Biden administration appealed Judge Kacsmaryk’s ruling, a divided three-judge panel overturned the most sweeping parts of its decision but restricted distribution of the pill, undermining the FDA’s recent efforts to facilitate access were reversed. Those include allowing the pills to be mailed and prescribed by non-medical health care providers.

In October 2021, it left a near-total ban on abortions in Texas. In 2018, it enforced a law in Louisiana requiring doctors who perform abortions to have access privileges at nearby hospitals, a requirement that opponents said would have left the state with only one abortion clinic.

For decades, the Fifth Circuit has had an inordinate number of Republican-appointed judges, but its current composition increasingly reflects President Donald J. Trump’s stamp on the judiciary, said Erwin Chemerinsky, the dean of the law school at the University of California , Berkley. .

“What makes the Fifth Circuit so stunning is not only that it’s dominated by Republican appointees, but how conservative they are,” said Mr. Chemerinsky.

In February, it struck down part of a federal law that had banned gun ownership for nearly 30 years by people subject to a domestic violence restraining order. In August, it blocked a government policy that would require doctors and hospitals to perform gender reassignment procedures. And in March 2022, it curbed the federal power to enforce laws that prevent companies from misleading investors.

Of the 16 active justices on the circuit, 12 are Republican appointees. Of those, half were appointed by Mr. Trump.

The three judges randomly assigned to the abortion pill case are two Trump-appointed judges, Judges James C. Ho and Cory T. Wilson, and one appointed by President George W. Bush, Judge Jennifer Walker Elrod.

Judge Ho, a former clerk to Judge Clarence Thomas, sat on the bench in 2017. A year later, Judge Ho lamented the “moral tragedy of abortion.” His conservative bona fides include serving as attorney general for Texas as it took on a series of legal challenges to the Obama administration; serving as senior counsel to Senator John Cornyn; and volunteering as an attorney for First Liberty Institute, a conservative legal group focused on issues of religious freedom.

Before joining the appeals court in 2020, Judge Wilson was a judge and state legislator in Mississippi, where he vehemently opposed abortion rights. He stated in a 2007 questionnaire that he favored the “full and immediate reversal” of Roe v. Wade and as an elected state official supported abortion bans and supported a bill that would criminalize abortion providers. He has consistently denounced the Affordable Care Act and pushed for stricter voting measures.

In 2014, Judge Elrod, confirmed in 2007, upheld a Texas law that placed more restrictions on abortions, including requiring doctors to follow what critics called an outdated and less effective regimen when prescribing abortion-inducing drugs. In January, she wrote the majority opinion when the court struck down a federal ban on bump stocks, attachments that allow semiautomatic rifles to fire in rapid succession.

That the Fifth Circuit is often at the forefront of controversial decisions reflects in part the ideological makeup of its judges and its geographic expanse of conservative states, which present a steady stream of challenges to policies enacted under Democratic governments.

(Certainly, California courts have often been seen as a receptive battleground for liberal organizations waging war against the Trump administration over issues such as immigration, the environment, and voting rights.)

An unusual case allocation system in Texas also plays a role.

In many federal appeals courts, including the United States Court of Appeals for the Ninth Circuit, long known as a more liberal circuit, cases are assigned by lot. While attorneys can try to file a lawsuit where they stand a chance of getting before a sympathetic judge, they can’t choose a particular attorney.

But some Texas divisions have only one judge, effectively allowing parties to choose who oversees their case. One such division is Amarillo, a mid-sized city in the Texas Panhandle, where Judge Kacsmaryk presides over all civil cases, including the case brought by the coalition of anti-abortion prosecutors.

“To a greater extent than any other circuit, they are often able to elect the district court judge themselves,” Mr Vladeck said.

In August, shortly after the Supreme Court overturned the constitutional right to abortion, the Alliance for Hippocratic Medicine was founded in Amarillo. It includes five anti-abortion medical groups from out of state. This fall, the coalition filed a lawsuit in Amarillo to ensure the case goes to Judge Kacsmaryk.

Before being nominated in federal court by Mr. Trump, Judge Kacsmaryk had written critically of Roe v. Wade and had worked for First Liberty Institute.