May18

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A Court Hearing Full of Sound and Fury, Signifying Nothing

If ever you wanted to know what it looks like when a panel comprised of three duly-appointed federal judges throws a temper tantrum, you really should have been in New Orleans yesterday. Because that's a pretty good description of what Judges Jennifer Walker Elrod, James Ho and Cory Wilson did.

The case in question is the ongoing legal battle over mifepristone. Readers will recall that Matthew Kacsmaryk of Texas, whose previous career was as an anti-abortion activist, ruled that the FDA's approval of the drug was not legal, and that it should therefore be withdrawn nationwide. Kacsmaryk's decisions are appealed to the ultra-conservative Fifth Circuit, and that's how Elrod, Ho and Wilson got the case. The latter pair are appointees of Donald Trump, the former an appointee of George W. Bush. And while there are certainly federal judges who do their very best to call balls and strikes, regardless of the president who appointed them, these three are not in that group. They (and many of their Fifth Circuit colleagues) have a richly deserved reputation for judicial activism, and for standing on their heads to get the desired (right-wing) legal outcome, regardless of what the law says.

Waging the fight against mifepristone are a bunch of right-wing activist groups, with the Alliance Defending Freedom (ADF) taking the lead. The ADF, incidentally, has been labeled a hate group by the Southern Poverty Law Center. Representing the defense yesterday were Sarah Harrington (for the FDA) and Jessica Ellsworth (for Danco Laboratories, which manufactures mifepristone). Here are some of the lowlights of a day that should be an embarrassment to jurists everywhere:

• Ho, for his part, was happy to accept claims made by the plaintiffs that are absolute myths. For example, that the FDA approved mifepristone on the basis that pregnancy is a "life-threatening illness." Ho asked: "When we celebrated Mother's Day, did we celebrate an illness?"
  
  
• Elrod was angry that the FDA has not produced full documentation of its approval process, despite Harrington pointing out that it will take time, since there are hundreds of thousands of pages of documents, stretching over three decades. The Judge implied that there's a cover-up going on.
  
  
• Elrod, who is clearly of a conspiratorial bent, also implied that Danco is engaged in illegal smuggling of mifepristone into states where it is banned.
  
  
• Elrod also chewed out Ellsworth for the language in her brief, which refers to Kacsmaryk's initial ruling as an "unprecedented judicial assault" on reproductive rights. The Judge strongly suggested that Ellsworth make a formal apology to Kacsmaryk.
  
  
• Wilson claimed that because the FDA allows people other than physicians to prescribe mifepristone, more women have ended up in the ER and/or in surgery. There is zero evidentiary basis for this claim.
  
  
• Observers in the courtroom universally agreed that while the three judges regularly subjected Harrington and Ellsworth to the third degree, and often interrupted them while they were speaking, they treated the plaintiffs' lead lawyer (Erin Hawley) with kid gloves.

The headline of The Washington Post's article about the hearing captures the conclusion that pretty much all commentators reached: "Appeals court appears likely to restrict access to key abortion pill."

There is only one small problem with that headline, however. If we want to be actually correct, the headline should be: "Appeals court appears likely to rule that access to key abortion pill should be restricted." Keep in mind that the Supreme Court has already weighed in on this matter, and has imposed an injunction on Kacsmaryk's decision that will remain in place until the entire process plays out, including SCOTUS' own hearing and ruling. So, Dewey, Cheatem and Ho could rule that mifepristone should be banned worldwide, and that everyone who so much as utters the word "mifepristone" should be drawn and quartered, or they could rule that mifeprostone should be doled out by the handful, like it's Halloween candy. Either way, it would not matter one damn bit. Until SCOTUS has its say, the status quo holds, and the opinion of the Fifth Circuit is irrelevant. And once SCOTUS does rule, their decision will trump whatever the lower court decided. So, unless SCOTUS splits in such a way that it cannot reach a majority decision (a nearly inconceivable outcome), which would leave the Fifth Circuit's ruling in place, then this trio of judges will never have any impact on the availability of mifepristone, one way or the other. Not for a single month, week, day, hour or minute.

Undoubtedly, Ho & Co. knew that their decision will almost certainly never take effect. So, did they behave the way they did because they were angry about that? Because they wanted to, at very least, take this opportunity to make their point(s) about mifepristone? Because that's how they would have behaved anyhow, regardless of the SCOTUS injunction? Who knows? But all they really achieved was to embarrass themselves, and to give a little more ammunition to the pro-choice forces, who are building a case that the courts are out of control, and some sort of reform is needed.

That's the legal story. If you prefer Shakespeare to Faulkner, it's Much Ado about Nothing. The political story is something else again. Not everyone is aware that the Supreme Court has already put the case on hold until it can make a decision on the merits of the case. A lot of people are going to hear about yesterday's appeals court ruling and think "abortion has been banned." This is likely to scare some of them, probably even scare some young people who generally don't vote into making a mental note: "Vote next year." So while the legal impact of the Fifth Circuit decision will be minimal, the political impact could be much larger (and see below for more on the politics of abortion). (Z)