May 18, 2023
Ms. Magazine

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

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.