A Friday night ruling from the Fifth Circuit will have massive, nationwide effects even in states in which abortions are still generally available—unless and until the Supreme Court steps in.
Oh, I am. Because I remember when back street abortions were real … and horrible … and so demeaning. Religion is supposed to include, not exclude; and America is supposed to be the land of the free, not elite.
But that one would be pretty difficult to apply only to mifepristone. The water reeks with antibiotics, ibuprofen, Viagra, and all manner of substances legal and not.
I agree there's no scientific evidence! But the thinking is that somehow ingesting trace mifepristone (or trace fetal cells) is special. I think there are a number of district judges and evidently at least one circuit who would entertain the notion.
Any thoughts on the Fifth Circuit styling this a stay instead of an injunction pending appeal? Louisiana had asked for either. Is it just because of the APA stay authority or do you think it has to do with the differing burdens for stays and injunctions pending appeal?
Your analysis surfaces something most coverage misses: Louisiana is the plaintiff claiming harm, and FDA has declined to defend its own rule on the merits. That leaves the manufacturers of mifepristone — Danco and GenBioPro — as the de facto defenders of reproductive access. But they’re defending their distribution model and their revenue, not women’s rights. Those interests converge here, and as a woman, I’m glad they do. What’s troubling is how contingent that convergence is — and how much reproductive access now depends on the commercial incentives of pharmaceutical companies rather than on any government actor willing to say that access itself is worth defending.
It seems to me that what answered for Justice Alito's rationale in Dobbs was that the Constitution does not speak to abortion, so the states are free to establish their own policy free from federal intervention. Since some states have defended a woman's control over her own body, and since this case apparently speaks only to the "injury" to Louisiana, that it would constitutionally impermissible to have the ruling interfere with the right of states to implement their own policy.
Can someone please help me understand how this ruling isn’t in violation of the Commerce Clause? (I’m not a lawyer, just a public health professional/repro rights activist who is deeply concerned about the way this ruling will harm patients across the country).
Why is this not practicing medicine without a license? I am a retired surgeon and could be sued for offering medical advice since my license is lapsed. Non medical people should NOT have this power to effectively practice medicine with NO TRAINING - imho. I am also not sure why musical boards are not suing over this- or saying anything.
Wasn't there a Supreme Court ruling recently saying that certain kinds of rulings can't be applied nationwide anymore? I'm sure I'm not describing it accurately, but does that apply here?
There are several assertions in the ruling that seem suspect. For example:
"FDA conceded it had failed to adequately study whether remotely prescribing mifepristone is safe" and seemingly taking as given LouIsiana's claims that "FDA’s
justifications for remotely dispensing mifepristone were based on flawed or
nonexistent data. It also documented how the new regulation had resulted in
numerous illegal abortions in Louisiana and in Louisiana paying thousands in
Medicaid bills for women harmed by mifepristone."
Did the FDA concede that it had not sufficiently study the safety of remote mifepristone prescriptions? What I've seen in the media is that there is *overwhelming* evidence that it is safe. In fact, it seems the opposite is true - the FDA has stated that it is safe.
I worry that the Trump FDA will flip and take Louisiana's side in this.
Extradition from NY to Louisiana for the already indicted doctor is inevitable-no shield law will work. Collection , by Texas of its judgement against the same physician will steam ahead under the full faith and credit clause.
Yes, the 5th is at it again, but in its very partial consideration of the equities it's behaving just as the Supremes did when halting Obama's Clean Power Plan, as you and many others noted. As for the fact that the "ruling will have massive and immediate nationwide effects on a huge number of private citizens in a context in which it isn’t remotely clear that the ruling is the right result," well, been there, Callais-ed that. I'm not as sanguine about the high court's choice will be as you seem to be.
The MAGA Republican courts, led by the Fifth Circuit and Taney SCOTUS 2.0, are determined to strip away fundamental rights from all persons who are not white men. Black and brown citizens are allowed to vote, but their votes will have no effect. Women without pregnancy complications are allowed to live, but the body of every woman belongs not to her but to the state.
Count on it that women and the men who love them will nullify this unenforceable ruling if it is allowed to stand. The mifepristone black market already exists at scale. Extending it nationwide is only a matter of (not much) time. Like popular resistance, jury nullification is a real thing too, as prosecutors will discover if they try to crack down.
time to revive bootlegging. The trumpi regime is a criminal enterprise. Anything that thwarts their anti-American actions is a defense of The Declaration & the Constitution.
I’m an old man. I remember when judges (and justices) ruled for people … not procedure.
Well, David, just be thankful that as an old man, you will NEVER be in the desperate position of needing this drug.
Oh, I am. Because I remember when back street abortions were real … and horrible … and so demeaning. Religion is supposed to include, not exclude; and America is supposed to be the land of the free, not elite.
It’s not just a drug for women.
The next front will be to categorize the residual mifepristone levels in water tables as harmful, and attack the provision of pills that way.
But that one would be pretty difficult to apply only to mifepristone. The water reeks with antibiotics, ibuprofen, Viagra, and all manner of substances legal and not.
I agree there's no scientific evidence! But the thinking is that somehow ingesting trace mifepristone (or trace fetal cells) is special. I think there are a number of district judges and evidently at least one circuit who would entertain the notion.
Any thoughts on the Fifth Circuit styling this a stay instead of an injunction pending appeal? Louisiana had asked for either. Is it just because of the APA stay authority or do you think it has to do with the differing burdens for stays and injunctions pending appeal?
Your analysis surfaces something most coverage misses: Louisiana is the plaintiff claiming harm, and FDA has declined to defend its own rule on the merits. That leaves the manufacturers of mifepristone — Danco and GenBioPro — as the de facto defenders of reproductive access. But they’re defending their distribution model and their revenue, not women’s rights. Those interests converge here, and as a woman, I’m glad they do. What’s troubling is how contingent that convergence is — and how much reproductive access now depends on the commercial incentives of pharmaceutical companies rather than on any government actor willing to say that access itself is worth defending.
It seems to me that what answered for Justice Alito's rationale in Dobbs was that the Constitution does not speak to abortion, so the states are free to establish their own policy free from federal intervention. Since some states have defended a woman's control over her own body, and since this case apparently speaks only to the "injury" to Louisiana, that it would constitutionally impermissible to have the ruling interfere with the right of states to implement their own policy.
Can someone please help me understand how this ruling isn’t in violation of the Commerce Clause? (I’m not a lawyer, just a public health professional/repro rights activist who is deeply concerned about the way this ruling will harm patients across the country).
Why is this not practicing medicine without a license? I am a retired surgeon and could be sued for offering medical advice since my license is lapsed. Non medical people should NOT have this power to effectively practice medicine with NO TRAINING - imho. I am also not sure why musical boards are not suing over this- or saying anything.
Medical not musical🤦♀️
Wasn't there a Supreme Court ruling recently saying that certain kinds of rulings can't be applied nationwide anymore? I'm sure I'm not describing it accurately, but does that apply here?
Yes. It's in Steve's article. No more nationwide stays, but this was done under authority of the Administrative Procedure Act (APA)
There are several assertions in the ruling that seem suspect. For example:
"FDA conceded it had failed to adequately study whether remotely prescribing mifepristone is safe" and seemingly taking as given LouIsiana's claims that "FDA’s
justifications for remotely dispensing mifepristone were based on flawed or
nonexistent data. It also documented how the new regulation had resulted in
numerous illegal abortions in Louisiana and in Louisiana paying thousands in
Medicaid bills for women harmed by mifepristone."
Did the FDA concede that it had not sufficiently study the safety of remote mifepristone prescriptions? What I've seen in the media is that there is *overwhelming* evidence that it is safe. In fact, it seems the opposite is true - the FDA has stated that it is safe.
I worry that the Trump FDA will flip and take Louisiana's side in this.
Extradition from NY to Louisiana for the already indicted doctor is inevitable-no shield law will work. Collection , by Texas of its judgement against the same physician will steam ahead under the full faith and credit clause.
Yes, the 5th is at it again, but in its very partial consideration of the equities it's behaving just as the Supremes did when halting Obama's Clean Power Plan, as you and many others noted. As for the fact that the "ruling will have massive and immediate nationwide effects on a huge number of private citizens in a context in which it isn’t remotely clear that the ruling is the right result," well, been there, Callais-ed that. I'm not as sanguine about the high court's choice will be as you seem to be.
Steve, many thanks for another great piece. Those elipses are doing a lot of work
Duncan is clearly auditioning for SCOTUS. The other two are aged out so what gives?
What’s the consequence of a doc outside the circuit ignoring the order?
Exactly. Distribution will go underground and become too widespread to be stopped. 1-800-Call Jane.
The MAGA Republican courts, led by the Fifth Circuit and Taney SCOTUS 2.0, are determined to strip away fundamental rights from all persons who are not white men. Black and brown citizens are allowed to vote, but their votes will have no effect. Women without pregnancy complications are allowed to live, but the body of every woman belongs not to her but to the state.
Count on it that women and the men who love them will nullify this unenforceable ruling if it is allowed to stand. The mifepristone black market already exists at scale. Extending it nationwide is only a matter of (not much) time. Like popular resistance, jury nullification is a real thing too, as prosecutors will discover if they try to crack down.
time to revive bootlegging. The trumpi regime is a criminal enterprise. Anything that thwarts their anti-American actions is a defense of The Declaration & the Constitution.
Or just vote in a Congress with 2/3 majority in both h ouses.