The 5th U.S. Circuit Court of Appeals is where law goes to die—a place where the nation’s most partisan jurists recklessly wield their power to enact hard-right policy under the guise of judging. But even by the court’s own dismal standards, Wednesday was a shitshow of epic and catastrophic proportions. A nightmare three-judge panel heard the never-ending mifepristone case, which seeks to pull the “abortion pill” off the market in all 50 states. The hearing was a humiliating farce from start to finish as Judges Jennifer Walker Elrod, James Ho, and Cory Wilson assumed the role of pro-life warriors hellbent on changing any rules and ignoring any evidence that might stand in the way of them ruling against abortion.
And here’s the punchline: Nothing these intellectual Lilliputians do will even matter. The Supreme Court has already decided that the 5th Circuit cannot be trusted with this case: In April, it froze the court’s previous decision stringently limiting access to mifepristone, expressly maintaining the freeze until the justices themselves take further action. Elrod, Ho, and Wilson are howling into the wind; they have no power to change a thing about federal regulation of medication abortion. The adults in the room have already put them in timeout. And rather than demonstrate that they can judge responsibly, they seized on Wednesday’s hearing to throw a combination temper tantrum/gaslight party. No lessons have been learned, no maturity acquired. This timeout probably isn’t ending anytime soon.
It would be cruel and unusual to subject the reader to a full recap of this sorry case, but here are the basics: In 2000, after a four-year review, the FDA approved mifepristone, in combination with misoprostol, for medication abortion. The agency imposed stringent limits on the drug and studied it extensively, eventually finding that it is incredibly safe and effective. In response to these findings, the FDA has reduced barriers to mifepristone since 2016: It authorized the drug’s use until 10 weeks of pregnancy (up from seven), approved a generic version, reduced reporting requirements, and stopped mandating three in-person doctor visits.
After the Supreme Court overturned Roe v. Wade, a group of anti-abortion activists created a group called Alliance for Hippocratic Medicine for the purpose of suing over mifepristone. They incorporated AHM in Amarillo, Texas, so that Judge Matthew Kacsmaryk—a former anti-abortion advocate known for extreme, dangerous, and incoherent far-right rulings—would be guaranteed to hear the case due to a jurisdictional loophole. Then they sued, represented by the Christian nationalist hate group Alliance Defending Freedom. Kacsmaryk played his part, issuing an unprecedented and unhinged decision purporting to suspend the FDA’s 23-year-old approval of mifepristone. The 5th Circuit futzed with his decision in a hopeless effort to make it marginally more plausible, but the Supreme Court didn’t bite: With only two dissenting votes, SCOTUS stayed Kacsmaryk’s whole ruling, meaning that nothing he or the 5th Circuit does to attack the drug will have any legal effect, unless the Supreme Court does an about-face and ultimately sides with the 5th Circuit.
Which brings us to Wednesday, when the FDA and Danco Laboratories (which manufacturers mifepristone) tried to pull the 5th Circuit back into the orbit of reality. It was a futile exercise. Elrod, a George W. Bush appointee, is one of the most disingenuous and petty judges on the bench. Ho is an extremist and a troll who’s blotto on his own power. Wilson, for his part, often seems to misunderstand basic facts about any given case. Both Ho and Wilson are—drum roll, please—Trump appointees. Sarah Harrington (for the FDA) and Jessica Ellsworth (for Danco) did an amazing job handling a comically hostile bench. But what was the point? Nobody seriously expects these robed ideologues to do their job with a modicum of integrity. Here are a few lowlights of the hearing:
•Ho credulously repeated the plaintiffs’ false claim that the FDA smuggled through mifepristone by calling pregnancy a “life-threatening illness.” (This argument rests on the lie that mifepristone went through “expedited review,” which Ho also parroted.) He asked Harrington angrily: “When we celebrated Mother’s Day, did we celebrate an illness?”
•Elrod, with evident exasperation, castigated the FDA for failing to produce a complete administrative record for the case—which, as Harrington explained, would require lawyers to compile for the court “hundreds of thousands of pages” going back to the 1990s. In response, Elrod suggested that the government was unscrupulously keeping it “a secret.”
•Wilson asserted that, by allowing medical professionals other than doctors to prescribe mifepristone, the FDA made it “much more likely” that patients will need emergency care, including surgery. (He literally just made this up.)
•Elrod suggested that Danco Laboratories should spend countless hours and resources to prepare for a judicial imposition of draconian restrictions on mifepristone just in case the court chose to do so, dismissing any costs as a minor “inconvenience.” (This, of course, completely ignored the Supreme Court’s order, which freed the defendants from this very obligation.) She also suggested, without evidence, that Danco may be complicit in smuggling the pills into states where they are banned.
•Ho read aloud random people’s criticisms of the FDA and made Ellsworth respond to them, then declared that federal courts should override the FDA’s scientific determinations because the agency isn’t trustworthy.
•Elrod chastised Ellsworth for calling Kascmaryk’s decision an “unprecedented judicial assault” in her brief, calling the rhetoric “far outside the bounds of established [criticism]” and a “personal attack” on Kacsmaryk. She then asked Ellsworth to retract the statements and apologize.
These are not serious people. This is not how real judges conduct themselves. This was barely a judicial proceeding. It was a struggle session in which three anti-abortion zealots yelled at attorneys who have already prevailed in this case once at the Supreme Court. Their rage should have been aimed at SCOTUS, but it’s not a good look for lower courts to trash-talk their superiors, so they redirected it to Harrington and Ellsworth instead. (Erin Hawley, wife of Sen. Josh Hawley, argued against mifepristone; the less said about her unceasing stream of shameless falsehoods, the better.)
It’s sad, really, what has happened to the 5th Circuit. In the Civil Rights era, this court led the charge for desegregation, fighting massive resistance with forceful decisions that helped break the back of Jim Crow. And today? Today it is the laughingstock of the judiciary; even other conservative judges—including some of the Supreme Court—refuse to follow its march into the abyss. Wednesday painfully reminded us why.