Abortion medication access won’t immediately change following a Wednesday ruling by the U.S. Court of Appeals for the Fifth Circuit, but it’s still worth paying attention to. If this ruling ever goes into effect, it will significantly reduce access to medication abortion. But a partially dissenting opinion from one judge highlights just how far right-wing judges are willing to go to make their political preferences the law.
The appeals court was looking at the April decision by U.S. District Judge Matthew Kacsmaryk purporting to nullify the Food and Drug Administration’s authorization of the medication mifepristone, part of a two-drug abortion protocol. Two of the three judges on the panel ruled against Kacsmaryk’s complete ban on mifepristone, though they would impose significant limits. The third, though, is another matter.
Judge James Ho—who was sworn in as a judge by Justice Clarence Thomas in billionaire Harlan Crow’s private library and who was at one point reportedly on Donald Trump’s shortlist for the Supreme Court—wanted to completely uphold Kacsmaryk’s decision, and he added his own astonishing reasoning for why anti-abortion doctors have standing to challenge the FDA’s mifepristone authorization:
Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. Doctors delight in working with their unborn patients—and experience an aesthetic injury when they are aborted.
An aesthetic injury. Ho was here citing cases in which “[i]t’s well established that, if a plaintiff has ‘concrete plans’ to visit an animal’s habitat and view that animal, that plaintiff suffers aesthetic injury when an agency has approved a project that threatens the animal.” In this case, of course, the unborn baby’s habitat is a woman’s body. Unless the woman is brandishing those ultrasound photos or having a medical examination, no one is looking at the fetus itself—they are looking at her body and projecting their own imaginations onto her.
The aesthetic injury to the doctor of having one less fetus to attend to—no concern here for the habitat/mother—ranks above women’s access to a safe medical option.
Dr. Jester put Plaintiffs’ interest in unborn life this way: “When my patients have chemical abortions, I lose the opportunity . . . to care for the woman and child through pregnancy and bring about a successful delivery of new life.”
Sorry, ladies. You might think your right to make decisions about your body that you live in every day would be considered by the courts, but Ho says Dr. Shaun Jester’s opportunity to provide medical care to you against your wishes is more important.
Kacsmaryk’s decision was put on hold by the Supreme Court until the end of the appeals process, which is why the Fifth Circuit decision has no immediate effect. But if the Supreme Court ends up sending this one back to the circuit court, it will have a big impact. The nation’s most conservative appeals court didn’t go as far as Kacsmaryk—it said the original FDA authorization should remain—but it did move to overturn the FDA’s 2016 and 2021 expansion of access to mifepristone by reducing the number of appointments required for a medication abortion, allowing nurse midwives and other medical practitioners to prescribe it and allowing it to be prescribed through telemedicine. The appeals court panel wants to roll things back to requiring patients to go to three in-person appointments to get a medication that has been well established to be safe through one appointment or through telemedicine.
The Justice Department is asking the Supreme Court to hear this case, but that’s obviously not something we can be confident will lead to a good outcome. Another possibility is that the high court will decide to say this appeals court ruling should stand. That’s probably what the two judges in the majority of this decision were looking for: a decision that looks like a compromise when taken against the backdrop of Kacsmaryk’s absurd contention that he has authority over FDA decisions going back decades.
While Ho took it a very large step past where the other two judges on the panel were willing to go, they too agreed that anti-abortion doctors have standing to sue over mifepristone access, because “it is ‘fairly likely’ that the Doctors—both those who testified and those who are members of the Medical Organizations but did not testify—will continue treating women who experience severe complications after taking mifepristone.” Medication abortion using mifepristone and misoprostol is overwhelmingly safe, leading to fewer complications than medication abortion using just misoprostol. It is also much safer than pregnancy and delivery, something these doctors are not attempting to get the courts to ban. In contrast, since the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, some courts have started challenging the legal standing of abortion providers to go to court to oppose abortion bans.
The ongoing redefinition of “standing”—in which parties to a matter are supposed to be able to show that they are directly affected by a law—by Republican judges is yet another brazen display of not caring what the law actually says if the law happens to get in the way of their desired outcomes. Legal Twitter again commented on that. “i cannot stress enough that, as a litigator, i have no idea how standing works anymore. it's just vibes,” civil rights lawyer Joshua Erlich tweeted. He added, “standing requires a case or controversy, that you are affected by that case or controversy, or, in the alternative, a right wing grievance, preferably in the 5th circuit.” In a quote tweet of Erlich, Josie Duffy Rice wrote, “we really spent the first semester of law school laser focused on standing bc it was so important, and now its just like meaningless which is cool.”
These right-wing judges are casting aside some of the foundations of how our legal system works, because those foundations stand in the way of their political agenda. And our rights are in their hands.
Did anything happen while we were all taking a well-deserved break? Something about Donald Trump being indicted not once, but two times! Also in the news: Florida Gov. Ron DeSantis’ campaign collapse. So much is happening!