Appeals Court Rules in Much-Anticipated Abortion Pills Case

Plus: Court urged to stop Arkansas’ social media age verification law from taking effect in September, legalizing medical marijuana linked to lower insurance premiums, and more…

ELIZABETH NOLAN BROWN

In a 2–1 decision released Wednesday, a three-judge panel of the appeals court rejected the parts of a lower court’s ruling saying that the Alliance for Hippocratic Medicine—the group challenging the Food and Drug Administration’s (FDA) initial approval of mifepristone back in 2000 and its generic approval in 2019—had standing to bring these challenges and had done so in a timely manner. “We vacate the component of the order that stayed the effective date of the 2000 Approval and the 2019 Generic Approval,” wrote 5th Circuit Judge Jennifer Walker Elrod for the majority.

But the 5th Circuit was sympathetic to the idea that later directives loosening restrictions on prescribing and dispensing mifepristone—including 2021 FDA actions allowing abortion pills to be prescribed virtually and received by mail and 2016 guidance allowing for lower doses to be prescribed—could be successfully contested by the Alliance for Hippocratic Medicine. The court affirmed the parts of the lower court’s ruling that nixed these 2016 and 2021 prescribing rule changes.

Despite the ruling, nothing about the way mifepristone is prescribed or dispensed must change immediately. “Although the appeals court would make access to the drug more restrictive, including by requiring in-person dispensing again, an earlier U.S. Supreme Court order means that the ruling does nothing to change mifepristone’s accessibility,” explains law blogger Chris Geidner. “The drug remains available on current terms.”

The new ruling stems from a case brought in Texas by the Alliance for Hippocratic Medicine. In April, U.S. District Judge Matthew Kacsmaryk ruled in the group’s favor, holding that the FDA erred in approving mifepristone more than two decades ago and when it later loosened prescribing restrictions.

Kacsmaryk said that access to the drug should be suspended. On the same day, however, a federal judge in Washington state held that federal authorities should not restrict access to mifepristone.

Meanwhile, the Department of Justice appealed the anti-mifepristone ruling. And the 5th Circuit partially paused the lower court’s decision pending the appeals court’s ruling on the merits of the case. “Basically, the [5th Circuit] panel stayed those portions of the order suspending the FDA’s 2000 approval of mifepristone, but not those concerning actions taken by FDA concerning mifepristone in 2016 or later,” explained Jonathan Adler at The Volokh Conspiracy.

The Supreme Court waded into the controversy in late April, granting the government’s request for a stay “pending disposition of the appeal in the United States Court of Appeals for the Fifth Circuit” and halting any implementation of future rulings on the case pending Supreme Court review.

The case is now in the Supreme Court’s hands.

“Under the Supreme Court’s [April] order, the Fifth Circuit’s decision would go into effect either if the Supreme Court doesn’t take up the case on appeal or if it takes the case and affirms the Fifth Circuit,” Geidner explains.

Notably, the 5th Circuit avoided ruling on Comstock Act claims, which had been part of the Alliance for Hippocratic Medicine’s initial challenge and Kacsmaryk’s order.

“Originally passed in 1873 and named for an anti-vice crusader, the Comstock Act was intended to prohibit the mailing of contraceptives, ‘lewd’ writings and any ‘instrument, substance, drug, medicine, or thing’ that could be used in an abortion,” explains PBS.

Kacsmaryk agreed with the Alliance for Hippocratic Medicine that the Comstock Act bans the mailing of mifepristone. Allowing the “dispensing of chemical abortion drugs through mail violates unambiguous federal criminal law,” he wrote. The FDA’s 2021 guidance saying mifepristone needn’t be prescribed in person was also “arbitrary and capricious,” Kacsmaryk held.

Agreeing with the “arbitrary and capricious” part of Kacsmaryk’s order there, the 5th Circuit “did not consider the Comstock Act claim raised by the challengers — a claim that has gotten significant attention due to its potentially wide-reaching effects,” notes Geidner.

FREE MINDS

“NetChoice filed its complaint in June, arguing, among other things, that SB 396 is a content, speaker and viewpoint based restriction on speech,” explained Nicole Saad Bembridge, associate counsel at NetChoice, on Twitter. “Core 1A activity takes place online — govt can’t make participation contingent on willingness to share sensitive personal info.”

This week, NetChoice asked the U.S. District Court for the Western District of Arkansas to prevent S.B. 396 from taking effect while the group’s First Amendment challenge to it plays out.

FREE MARKETS

“Seven years after the implementation of Medical Cannabis laws, we observe lower health insurer premiums in the individual market,” they found. “Due to the nature of insurance pooling and community rating, these savings are appreciated by cannabis users and non-users alike in states that have implemented [medical cannabis laws].

“While the reductions were modest immediately following implementation, the study found that by seven years afterward, annual premiums had fallen $1,663 compared to states in the control group,” explains Marijuana Moment. “Similar reductions were seen after eight years ($1,542) and nine years ($1,626), indicating that the decline was fairly stable over time.”

QUICK HITS

ICYMI, TPA has launched a new project FTC Mission Creep to call out this overreach and departure from precedent: https://t.co/0VdTa1pxCT pic.twitter.com/cet0LryVUa

— Taxpayers Protection Alliance (@Protectaxpayers) August 15, 2023

• A Texas prison officer is suing the Texas Department of Criminal Justice and officials at the prison where she worked after being delayed for hours when, at seven months pregnant, she said she needed to go to the hospital during one of her shifts. The suit was brought on behalf of herself and her fetus, who was stillborn at the hospital. “But the prison agency and the Texas attorney general’s office, which has staked its reputation on ‘defending the unborn’…[said] it’s not clear that [the] fetus had rights as a person,” reports The Texas Tribune.

• Fulton County District Attorney Fani Willis is abusing Georgia’s terrible RICO law, argues Reason‘s Joe Lancaster.

Since starting at Reason in 2014, Brown has won multiple awards for her writing on the U.S. government’s war on sex. Brown’s writing has also appeared in The New York Times, Los Angeles Times, The Daily Beast, Buzzfeed, Playboy, Fox News, Politico, The Week, and numerous other publications. You can follow her on Twitter @ENBrown.

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