Elie Mystal: The Fifth Circuit's Abortion Pill Ruling Was All About Sowing Confusion

[Nevilledog]

https://www.thenation.com/article/society/the-fifth-circuits-abortion-pill-ruling-was-all-about-sowing-confusion/

No paywall
https://archive.is/ioqqz

Judges are political actors. They want to be treated like apolitical legal scholars, merely divining legal principles from above the political fray, but most often their decisions cannot be understood absent the context of the political and cultural battles their rulings are a part of.

The latest proof of this is the decision from the US Court of Appeals for the Fifth Circuit partially overturning but largely leaving in place US District Judge Matthew Kacsmaryk’s nationwide abortion pill ban.

Early Thursday morning, the court reversed Kacsmaryk’s ruling that the Food and Drug Administration’s approval of mifepristone in 2000 was unconstitutional, but it didn’t touch the part of the ruling striking down the FDA’s 2016 update to the drug’s usage. Those updates determined that the drug was safe and effective up to 10 weeks into pregnancy, slightly expanding the agency’s original determination that it could be used up to only seven weeks of pregnancy.

In coming to this split decision, the court reasoned that the plaintiffs’ challenge to the FDA’s process in 2000 fell outside the six-year statute of limitations to bring such a case. By the very same logic, a challenge to the 2016 process should also fall outside the statute of limitations, but the Fifth Circuit did not reach this conclusion. Instead, it waved away that inconvenient fact, arguing that the clock didn’t start ticking on the statute of limitations in 2016, when the FDA made the rule, but in 2021, when the FDA responded to people who didn’t like the rule. Further, the court made the unsupported and legally irrelevant observation that the 2016 updates were not “critical to the public” and thus the court could revoke them. It’s the kind of argument that could be made only by someone who thinks pregnant people learn that they’re pregnant at the moment of conception because a stork visits them in the middle of the night and tells them they’re knocked up. It’s not an observation that has any basis in human reproductive biology, legal standards, or the lived experience of pregnant people.

*snip*

[erronis]

1. Thanks for this from Elie Mystal -

Just to add the next few paragraphs from this important opinion:

By upholding the part of Kacsmaryk’s opinion reversing the 2016 approval process, the Fifth Circuit has stealthily imposed a nationwide seven-week ban on the abortion pill. The court also upheld Kacsmaryk’s decision to reverse the Biden administration rule change allowing mifepristone to be distributed by mail. The Biden administration expanded access to mifepristone in January, and now that access has been taken away again.

More critically, the Fifth Circuit accepted all of the insane legal arguments Kacsmaryk adopted to get the case to this point in the first place. It accepted the “standing” argument that doctors who did not themselves use mifepristone have a right to sue the FDA on behalf of women allegedly too “ashamed” or “traumatized” to file a lawsuit. It accepted the fake science deployed to allege that the FDA did not fully consider the “psychological” effects of abortion on people who choose to have abortions. And it accepted the fundamentalist Christian contention that the abortion pill involves the termination of a human life (which is a religious belief not shared by millions of Americans who are supposed to be living under a secular government), not that it allows a pregnant person to control their reproductive system.

None of this makes any sense—not, that is, until you think of the headlines. If the Fifth Circuit had allowed Kacsmaryk’s ruling to stand in full, the headlines would have read something like: “Rando Texas Judge Bans Abortion Pill—and Fifth Circuit Agrees.” But with this Fifth Circuit ruling, the headlines have to say “Court Partially Overturns Ban of Abortion Pill,” or whatever. That the ruling is wrong, illogical, paternalistic, and sexist, kind of gets lost in the larger conversation of “Can I get mifepristone tomorrow, yes or no?” Since the answer is, technically, “Yes… for now,” it’s likely that the media will move on and wait for the courts to sort out the “legalese” of whether people who have had medical abortions are too damaged to sue on their own behalf.