// Yesterday, the Fifth Circuit ruled in a case that seems destined to get the Supreme Court’s attention on the availability of the widely used abortion medicine mifepristone. The panel in the case, all appointed by Republicans (Judges Jennifer Walker Elrod, James C. Ho, and Cory T. Wilson), was very favorable to the plaintiffs who sought to reverse the U.S. Food and Drug Administration’s decades-old approval of the medication. The majority decision didn’t go quite that far, but they did reinstate restrictions on access to mifepristone. Patients’ ability to obtain mifepristone via mail and telehealth visits with prescribers, along with other limitations, will now be curtailed. (It should be noted, the order is stayed pending the resolution of any petition for Supreme Court review, so the relaxed access will remain in effect until that time.)

The majority wrote:

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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. It failed to consider the cumulative effect of removing several important safeguards at the same time. It failed to consider whether those “major” and “interrelated” changes might alter the risk profile, such that the agency should continue to mandate reporting of non-fatal adverse events. And it failed to gather evidence that affirmatively showed that mifepristone could be used safely without being prescribed and dispensed in person.

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So, the Fifth Circuit decided it knows more about drug safety than the FDA, which is bad. But James Ho’s concurrence/dissent is so much worse.

Ho would have revoked mifepristone’s approval in its entirety, despite it being on the market for 20+ years. In so finding, Ho said that anti-abortion doctors have standing to challenge the drug approval for an… interesting reason.

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Vibes-based standing for doctors opposed to abortion. – James Ho https://t.co/U6FpAQrtNO

— Chris Geidner (@chrisgeidner) August 16, 2023

“Aesthetic injury”? That’s… quite the stretch (he pulls the concept from environmental law). But it is illuminating that Ho is willing to do the legal gymnastics to get there — as long as it serves a conservative policy goal. As others have noted, it seems unlikely Ho would contort the concrete injury requirement of standing in a gun case. Could you imagine him writing:

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“Unborn babies are a source of profound joy for those who view them. Expectant parents eagerly share ultrasound photos with loved ones. Friends and family cheer at the sight of an unborn child. Doctors delight in working with their unborn patients—and experience an aesthetic injury when they are aborted KILLED BY AN AR-15.”

Yeah, I can’t see it either.

Consider this just another reminder that for all the bluster of calling balls and strikes, right-wing judges are in the business of advancing conservative policy goals. That veil of neutrality — though it is increasingly thin — is nothing short of gaslighting.

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Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter @Kathryn1 or Mastodon @[email protected].

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Abortion, Courts, Dobbs v. Jackson Women's Health, James Ho