On August 16, a three-judge panel of the U.S. Fifth Circuit Court of Appeals issued its highly anticipated ruling in Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration. The panel was composed of Judges Jennifer Elrod, James Ho, and Cory Wilson. The Fifth Circuit decision vacated in part and affirmed in part Amarillo Federal District Court Judge Matthew Kacsmaryk’s April 7th decision on a motion for preliminary injunctive relief.
The Fifth Circuit decision addresses two primary questions: Did the FDA wrongfully approve the chemical abortion pill Mifepristone in 2000? Did the FDA wrongfully loosen Mifepristone’s safety restrictions providing protection for women?
As a reminder, Mifepristone is the first of a two-drug chemical abortion regimen and is used in over 54% of abortions in America. (See Council for Life News HERE for a series of articles on chemical abortion)
Question 1: Chemical Abortion Pills Remain on the Market
The Fifth Circuit panel voted 2 to 1 that the Medical Organizations and Doctors’ challenge to the FDA’s approval of Mifepristone in 2000 was barred by the statute of limitations. Judge Kacsmaryk’s ruling to suspend and remove the deadly pills from the market was vacated. Judge James Ho was the one dissenting vote, arguing that the “FDA’s initial approval of Mifepristone in 2000 also violates the agency’s own rules and must be set aside.”
Question 2: Potential Reinstatement of Vital Safeguards
However, the Fifth Circuit panel unanimously upheld part of Judge Kacsmaryk’s preliminary decision, ruling the FDA likely violated the law and must reinstate necessary safeguards to protect the health and safety of women. “In loosening Mifepristone’s safety restrictions, FDA failed to address several important concerns about whether the drug would be safe for the women who use it,” Judge Elrod wrote in the opinion.
Next Legal Step: Appeal and Review by SCOTUS
The Fifth Circuit’s decision is on hold pending an appeal by the Department of Justice to the U.S. Supreme Court. White House Press Secretary Karine Jean-Pierre stated: “We strongly disagree with today’s ruling…which undermines FDA’s scientific, independent judgment and reimposes onerous restrictions on access to safe and effective medication abortion.” (See The White House Statement HERE)
If the Fifth Circuit ruling is ultimately affirmed by SCOTUS, the following crucial FDA safeguards will be restored:
- No chemical abortion drugs sent through the mail
- Drug allowed only to the 7th week of pregnancy rather than the 10th week
- Three in person doctor’s-office visits required
- Physician must administer drug in person
- Providers must report non-fatal adverse events
We are thankful for the courage of the Fifth Circuit Panel. Please pray for the U.S. Supreme Court Justices to rule on the side of Life. Please pray for the protection of SCOTUS, the Fifth Circuit Panel and Judge Kacsmaryk and all those in positions of authority who boldly and bravely defend the unborn.