A federal appeals court panel on Wednesday seemed skeptical of the Biden administration’s arguments to keep the widely used abortion pill mifepristone on the market in its current form.
During oral arguments, a three-judge panel on the 5th U.S. Circuit Court of Appeals — all appointed by Republican presidents — grilled attorneys from the Department of Justice and Danco, the manufacturer of the brand name mifepristone, who are attempting to keep the drug available.
Just seconds into Deputy Assistant Attorney General Sarah Harrington’s argument, she was interrupted by Judge James Ho, who challenged her assertion that a lower court’s ruling was an unprecedented intrusion upon the Food and Drug Administration’s (FDA) authority.
“I hate to cut you off so early, but you’ve said ‘unprecedented.’ We had a challenge to the FDA just yesterday,” said Ho, an appointee of former President Trump.
Ho’s questioning set the tone for the nearly two hours that followed.
The panel appeared sympathetic to arguments by the plaintiffs, a group of anti-abortion physicians and physician groups, that the FDA failed to consider a myriad of safety issues as it made policy changes to make the drugs more widely available.
But two of the three judges seemed more hesitant toward arguments that the court should suspend the FDA’s original approval of mifepristone in 2000. A lower court had blocked all of the agency’s actions.
The ruling won’t come for weeks or months, but it is unlikely to have an immediate impact.
The justices last month preserved the status quo, pausing rulings in the case that threaten access to mifepristone until the appeals process is resolved. The losing party is widely expected to bring the case back to the Supreme Court.
The case marks the highest-stakes legal battle on abortion since the Supreme Court overturned Roe v. Wade last year. Any ruling by the panel that restricts the availability of mifepristone would mark a major blow to the Biden administration in its attempt to preserve access to abortion.
