Appeals Court Scrutinizes Abortion Pill Case

NEW ORLEANS, LA – The U.S. Fifth Circuit Court of Appeals heard oral arguments on Wednesday in Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration in which pro-life medical groups assert that the federal government has harmed women and girls by improperly approving and illegally distributing the chemical abortion drug mifepristone. The medical groups are asking the court to invalidate the Food and Drug Administration’s (FDA) 2000 approval of the drug which would take the drug off the market nationwide protecting women and their unborn babies.

A three-judge panel heard arguments from pro-life medical professionals, the Department of Justice, and drugmaker Danco Laboratories. The panel heard the case after the U.S. Supreme Court recently issued a preliminary ruling keeping the drug’s nationwide availability in place while the Appeals Court gives the case a full hearing.

During the occasionally contentious two-hour hearing, the judges questioned attorneys on both sides on the legal standing of whether the plaintiffs suffer a specific and direct injury from mifepristone’s availability sufficient enough for them to bring a lawsuit. The panel also examined the process the FDA used to approve the drug, and whether the agency adequately considered the health risks. In addition, the judges also considered potential violations of a federal statute by the FDA in allowing the drug to be available by mail. 

Biden administration attorney Sarah Harrington, representing the FDA, opened the government’s argument suggesting this case is an “unprecedented and unjustified attack on the FDA’s scientific expertise” since no court has ever vacated a drug’s approval that the FDA has deemed safe and effective.

“It’s not a court’s role to second guess that expertise,” said Harrington.

Then Judge James Ho immediately challenged those assertions.

“I don’t understand this theme that [the] FDA can do no wrong. We are allowed to look at the FDA just like we’re allowed to look at any agency. That’s the role of the courts.” Judge Ho continued to point out that the FDA has in the past approved drugs only later to learn there were in fact safety issues and side effects.

Judge Ho also questioned the FDA’s use of an accelerated and less rigorous process to approve mifepristone. According to attorney Erin Hawley, who represents the pro-life medical groups, the FDA improperly classified pregnancy as an illness to give the drug expedited approval. Judge Ho questioned whether the drug was put into the correct regulatory category due to pregnancy not being an illness.

“Pregnancy is not a serious illness,” Judge Ho said.

Danco Laboratories attorney Jessica Ellsworth counterargued that the FDA acted properly and uses words like “illness,” “disease,” and “condition” interchangeably. Ellsworth noted that the FDA uses the same process for other non-serious conditions such as infertility.

Judge Ho asked, “When we celebrated Mother’s Day, were we celebrating illness?”

Much of the discussion was devoted to the claim by the Biden administration and Danco Laboratories that the plaintiffs had no legal standing to file the lawsuit because they were not directly harmed by the FDA’s approval of the abortion pill. On behalf of the plaintiffs, Hawley argued they indeed were harmed having been “forced to participate” in abortion against their conscience when women sought emergency care after taking mifepristone.

“They allege that they feel complicit in an elective abortion by being forced to complete that procedure,” Hawley said.

Judge Cory Wilson asked, “Does the approval of any drug that triggers a conscience concern in the part of a doctor give that doctor standing to bring a suit? Where do you draw the line?”

Hawley insisted the doctors have legal standing because they had been forced to violate their consciences by helping “complete” an abortion and that being involved again would subject them to “irreparable harm.”

Hawley said, “Abortion is…about ending the life of an unborn child…this case is much different from a doctor who claims harm from treating an asthmatic child or a gunshot victim because here the actions are directly traceable to the FDA’s unlawful actions in approving and deregulating mifepristone.” Hawley then cited the FDA’s own approval records of the drug stating, “The FDA acknowledges in its initial approval of the drug that emergency room doctors are going to be part of the solution in cleaning up the mess that’s left for women suffering consequences of chemical abortion.”

Focusing on safety, Judge Wilson and Judge Jennifer Walker Elrod questioned whether the telemedicine and mail delivery options for mifepristone were safe. Judge Wilson specifically noted that the FDA had loosened the drug’s restrictions in 2016 broadening its availability, and later in 2021 began allowing delivery by mail. Judge Wilson asked the government if the FDA had conducted any studies before then evaluating the safety of the changes. The government’s attorney conceded that no studies have been done.

“It just strikes me what FDA has done … you’ve made it much more likely that patients are going to go to the emergency room,” Judge Wilson said.

Liberty Counsel filed an amicus brief in this case to the Fifth Circuit on behalf of the Frederick Douglass Foundation and the National Hispanic Christian Leadership Conference which have a strong interest in exposing the racist and eugenic history of the FDA’s chemical abortion regimen that has had catastrophic effects on their communities.

Liberty Counsel’s amicus brief states, “The abortion movement in the United States is rooted in eugenics ideology, which seeks to eradicate those who are deemed unfit or undesirable. The advocacy for mifepristone and its subsequent approval by the FDA is a continuation of that eugenic legacy…[mifepristone is] a chemical abortion regimen that indisputably targets Black, Hispanic, and disabled communities and furthers a eugenic ideology.”

In the amicus brief, Liberty Counsel presents the fact that today Planned Parenthood has intentionally located 86 percent of its abortion clinics in or near minority neighborhoods in the 25 U.S. counties with the most abortions.

The brief further states, “Mifepristone and medication abortion are crucial tools of these abortion clinics. 31% of abortion clinics described above offer exclusively chemical abortions using mifepristone …Further, mifepristone’s use has skyrocketed to the extent that currently 67.9% of all early-term abortions occur through chemical abortions, usually using mifepristone…Today, mifepristone’s use as part of the chemical abortion regimen is the preferred means of perpetuating this shameful [eugenic] legacy.”

Mifepristone, part of a two-drug protocol taken with misoprostol, slowly starves a baby to death in the womb over one to two days, and then misoprostol induces labor and causes severe cramping, contractions, and bleeding to expel the baby from the womb. Chemical abortions currently account for more than half of all abortions in the U.S., according to the pro-abortion Guttmacher Institute.

Liberty Counsel Founder and Chairman Mat Staver said, “Chemical abortions harm women physically and emotionally and kill defenseless children in the womb. Chemical abortion is also rooted in racism and eugenics to eliminate certain races and people. It not only harms physically, but it also harms emotionally and spiritually for those medical professionals who must take part in the death of an unborn child against their conscience. No one should have to choose between their livelihood and their conscience. The FDA has disregarded the law and shirked its responsibility to keep people safe and must be held accountable. The FDA is not above the law.”

SOURCE Liberty Counsel

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