ICYMI: Reproductive Rights, Health and Legal Experts Discuss Implications of Legal Challenge to Mifepristone Ahead of 5th Circuit Oral Arguments This Week

Oral arguments before the 5th Circuit will be live-streamed beginning at 1 pm CT on May 17 here.

WASHINGTON – On Wednesday, May 17, the Fifth Circuit Court of Appeals will hear oral arguments in Alliance for Hippocratic Medicine v. FDA. Ahead of the argument, reproductive rights, health and legal experts gathered to discuss the case challenging the approval of mifepristone, a medication commonly used in abortion and miscarriage care. Last month, the Supreme Court issued an emergency stay on a lower court’s decision reversing the drug's two-decade-FDA approval. The stay will remain in place as this case moves through the appeals process.

Experts discussed the next legal steps for the case, the impact on patients and providers, and extremist anti-abortion advocates’ attempt to ignore the will of the majority of Americans who support access to medication abortion.  

Jennifer Dalven, Director of the ACLU Reproductive Freedom Project talked about the landscape going into oral arguments: 

“This is one of the worst panels of judges that could have been assembled for those who believe that mifepristone should remain on the market. One of the judges, Judge James Ho, went so far as to call abortion a moral tragedy. So despite the fact that even very conservative legal experts have noted that this case has no business being in court, we have to be prepared for all possible outcomes. 

If the plaintiffs were to succeed in this case, the effects would be extraordinarily dangerous and far-ranging. It would be devastating for patients seeking abortion and miscarriage care and would be catastrophic for Americans in terms of their access to a wide range of critical medications.”

Jen Castle, National Director of Abortion Service Delivery and Provider at Planned Parenthood Federation of America discussed the threat to patients: 

“This case has led to significant patient confusion, which was the point of anti-abortion activists. Planned Parenthood health centers, as well as providers and staff at other clinics across the country, are doing everything possible to make sure that our patients have the most medically accurate and up-to-date information around so they can get the care that they need. To be clear, the fact that we are at a point where the courts are questioning the scientific expertise of the FDA is unacceptable. Banning mifepristone across the country will most severely impact people living in already medically underserved communities and especially people of color and low-income patients who already face barriers to care due to systemic inequities in our country's health care system.” 

Angela Vasquez-Giroux, Vice President of Communications and Research at NARAL Pro-Choice America, spoke to the political implications and motivations of the case:  

“We can already see the world anti-abortion extremists want in places like Oklahoma and in Tennessee, where two women were forced to wait until their pregnancies were lethal before receiving an abortion. But, abortion is not a polarizing issue. The vast majority of Americans support reproductive freedom. In fact, 8 and 10 Americans support the legal right to abortion, and the majority of Americans of every party support abortion pills remaining accessible, including 51% of Republicans. Americans don't want what Republicans are selling on abortion, including when it comes to their so-called 15 week compromise bans. There is no compromise when it comes to our fundamental rights.” 

Support for mifepristone’s approval has continued ahead of oral arguments, with amicus briefs highlighting the threats posed by the baseless case to the long-standing authority of the FDA and to patient-provider relationships. Former FDA commissioners, patient and provider advocacy organizations, and the pharmaceutical industry were just some of the groups that filed amicus briefs in the case on behalf of the FDA:  

• Former FDA commissioners from 1990-2019, including the Clinton, Obama, Trump and both Bush administrations, filed a brief explaining the flaws in the district court’s opinion and the threats to the FDA’s approval process would result if the decision were to stand.  The brief noted that the district court “did not engage with the enormous record of evidence relied upon by the FDA,” but instead “relied largely on anecdotes” and studies that “on their face were scientifically unsound.”  It went on to explain that the district court’s decision “threatens to destroy the complex evidence-based drug approval  process” and that “patients in need will ultimately bear the catastrophic consequences of the resulting instability.”  
• The Leukemia and Lymphoma Society led a brief on behalf of twenty patient advocacy groups, including the American Cancer Society, the Arthritis Foundation, the National Epilepsy Foundation, the National Multiple Sclerosis Society and more than a dozen other organizations, outlining the catastrophic effects of the decision beyond abortion, explaining that allowing the lower court ruling to stand “jeopardizes patients’ access to drugs on which their health and, in some cases, their lives depend.” 
• Pharmaceutical Research and Manufacturers of America and other industry experts filed another brief explaining the drastic impacts of this case on medical research and the ability to get critical new drugs to patients, warning that the critical medications Americans rely on to keep themselves healthy, and in some cases alive, could be at risk if lower court rulings were to stand.     

Legal and advocacy groups, the American Civil Liberties Union, Planned Parenthood Federation of America, and NARAL Pro-Choice America, have legal and political experts ready to comment on the potential impact of the case on the FDA and access to abortion nationwide. 

If interested in speaking with anyone, please do not hesitate to reach out to [email protected]. 

###