The Mail Issue is Not a Big-Stakes Issue: Attorneys for Marke Prior Stone Hearings Federal Appeals Court
The Fifth Circuit’s decision could come at any time, and it is certain to be appealed back to the Supreme Court. During the emergency stay that was issued last month, the Supreme Court may refuse to hear the appeal of the case, or it may rule again.
There was national attention to the lawsuit. Dozens of briefs have been written by medical associations, pharmaceutical industry, sexual assault survivors, local governments, groups of legal scholars and politicians urging the court to rule either way in the case.
In their appeal, lawyers representing Danco wrote that Kacsmaryk’s decision was “an unprecedented judicial assault on a careful regulatory process that has served the public for decades.”
The lawsuit was originally filed in the Northern District of Texas, a venue that guaranteed it would be heard by Kacsmaryk, a Trump appointee who was a vocal abortion opponent before becoming a federal judge. In 2018, before his confirmation, Kacsmaryk donated $500 to the Senate campaign of Hawley’s husband Josh. (Sen. Josh Hawley is a Republican representing Missouri.)
“You think the mail issue is not a dramatic change? You don’t think going from seven to ten weeks is a dramatic change? You don’t think going from three visits to just one without a doctor?” Ho questioned the Danco lawyer. This is a big-stakes issue, we can’t deny that.
The Food and Drug Administration (FDA) filed a lawsuit against Danco and Danco Laboratories in a federal court of appeals in New Orleans
Generally, a six-year statute of limitations applies to agency actions. The door to challenge the FDA’s approval was reopened because of the FDA’s later decisions to expand access to the drug.
Lawyers representing Danco and the federal government have also argued that the lawsuit is invalid because too much time has passed since the FDA initially approved mifepristone and made a series of changes to its regulations in 2016, including to expand its approved use from seven to ten weeks gestation.
She replied: “We are absolutely disputing that many women will show up in emergency rooms or that more will show up in emergency rooms needing emergency care from taking mifepristone. Mifepristone is a safe drug according to the evidence.
“Although they claimed that they cared for one patient in the past, we now live in a world where abortions are still legal in Texas and Indiana, even if the patient was not actually a patient at the time,” he said.
A lawyer for the plaintiffs, Erin Hawley, claimed that ending a pregnancy with medication — she used the anti-abortion term “chemical abortion” — is extremely unsafe.
The group who brought the lawsuit did not have the standing to do so, argued lawyers for the federal government and Danco Laboratories.
The federal government counters that mifepristone has a long track record of safety, and that the FDA acted appropriately and within its Congressional authority.
On Wednesday, a three-judge panel in New Orleans questioned lawyers representing the federal government, mifepristone’s manufacturer and the plaintiffs who oppose abortion. Donald Trump and George W. Bush both appointed judges, while James Ho and Craig Wilson were appointed by Republicans.
Women in sexually abusive relationships who have said that if you don’t give them the pill by mail, then they will never get away, are some of the reasons the appeals court received so many friend-of-the-court briefs.
Judge Wilson was not certain of his opinion. He said that he felt that the F.D.A. had made it more likely because it had made it easier to do by mail order and remove the doctor visits. I don’t see how you square that circle.”
Judge Wilson asked Ms. Harrington: “You’re not disputing the idea that in the future because of the F.D.A.’s actions, more women will turn up in emergency rooms needing emergency care?”