ABOUT YESTERDAY’S 5TH CIRCUIT MIFEPRISTONE ORDER
Well, it’s been quite the week for Louisiana, hasn’t it? First the redistricting decision, and now the mifepristone opini… oh wait, it’s not an opinion, it’s a *stay*. Stays, as you know by now if you’ve been following me, or any of the legal commentators, for any period of time, are *temporary* actions, pausing a court ruling until the Court can fully consider an issue.
Now, before I go any further, there are some people – in the minority to be sure – but some people, who take me to task, indeed seem to be outraged, that I maintain a neutral countenance in my explanations. They seem to want *me* to be outraged about whatever I’m explaining, as was the case with this week’s earlier redistricting case, and as I’m sure will be the case here.
But laws are neutral, laws apply to everyone. It’s how people use them – how people skirt them, how people get away with breaking them, that is not neutral. The sky is not falling, the sky just is.
So if you are one of the people who is outraged that I am not exhibiting the degree of outragedness that you think I ought to be, well, there are plenty of legal commentators who will play to your ire; I, however, will not – my explanations are based on the facts and the law, period. They also do not reflect how I *feel* about a given court decision or opinion or law. Being a good lawyer requires clinical analysis, and even an outward dispassion. I give you the facts and the truth, I don’t tell you how you should feel about it – that’s up to you. Please give me the same courtesy.
Now, with that out of the way, following the Dobbs decision, the Biden administration ordered the FDA to expand access to medications such as mifepristone. Keep in mind that this was in 2022, so we were still in the middle of dealing with Covid requirements, and telehealth had become a real thing.
In 2023, following the Biden administration order, the FDA issued a regulation changing the guidelines for dispensing mifepristone, allowing it to be prescribed online and sent through the mail.
Last year Louisiana sued the FDA, saying that this change in regulation was causing people to break Louisiana law, which outlaws all abortions except for a few exceptions such as to save the life of the mother. Note that the penalty for accessing an illegal abortion in Louisiana is, and I quote, “imprisonment at hard labor for not less than one nor more than five years, (or being) fined not less than five thousand nor more than fifty thousand dollars, or both.” I would just note that raising a child takes considerably more than five years, and costs considerably more than $50,000. I wouldn’t be surprised if some women are doing that math.
Louisiana also included in their lawsuit that they were being forced to pay “thousands in Medicaid bills for women harmed by mifepristone.”
Finally, Louisiana pointed out that, and again I quote from the court records, “the FDA conceded it had failed to adequately study whether remotely prescribing mifepristone is safe.”
That last bit is a big oopsie for the FDA and the FDA’s defense against Louisiana’s lawsuit.
It is *very important* to understand that this is the State of Louisiana suing a government agency, the FDA, over a regulation that the agency passed; a regulation which the state says is causing illegal activities within the state, and a regulation based on a treatment method the safety of which the FDA itself admits that it had “failed to adequately study”.
In fact, Louisiana sued under our old friend the Administrative Procedures Act (APA). Louisiana was suing to *stay* that regulation.
Now the reason you may not have heard of this lawsuit before, if you haven’t, is because the lower court, from which this was appealed, found that Louisiana was actually likely to succeed on the merits (i.e. win their case) BUT because the FDA said that they were *right then* in the *middle* of reviewing the .. well I’ll let the Court explain it: “The record shows that FDA is currently in the process of “conducting its own review of the evidence” with respect to the current Risk Evaluation and Mitigation Strategies (“REMS”), “to determine whether modifications are necessary.” ”
(Notes from the Front members: both the original order from the lower court and yesterday’s order, are included for you.)
The lower court also pointed out, quoting from another case, that “courts owe significant deference to the politically accountable entities with the ‘background, competence, and expertise to assess public health.”
This is what is known in the law as “kicking the can down the road”.
Louisiana appealed the ruling the next day, on April 8th.
The lawsuit was filed in October of last year. The ruling from the lower court came out on April 7th, and that ruling essentially paused the lawsuit to give the FDA time to review the regulation and risk. So there would be no reason for you to have heard about this lawsuit either when it was filed *or* when the lower court paused the lawsuit in order to allow the FDA time to complete its review *or* when Louisiana appealed that pause.
So you would be forgiven if, when it burst on the news scene yesterday, you had a “WTF?” moment.
Here’s what yesterday’s order from the Court of Appeals did:
It paused the FDA’s regulation allowing online prescription and mailing of mifepristone until the Court hears the actual case on the facts and merits of the case.
THIS is why it’s “nationwide”, because it’s a federal regulation that is nationwide. As for whether that means it’s a universal injunction, which the Supreme Court limited, the Court points out that the Supreme Court *explicitly said* that the CASA decision (which addressed universal injunctions) did *not* address whether the Administrative Procedures Act empowers federal courts to vacate the actions of federal agencies (which are by definition nationwide).
Notes from the Front members: Yesterday’s order and the original order from the lower court are both in your inbox now!
Not a Notes from the Front member? Please consider joining and supporting my work. It’s only $5 a month, it gives you access to our private chat (fun!) *and* to all the documents, plus your $5 a month helps support my coffee habit and helps me keep on with all of the research and writing I’m doing from the front. You can join now here:
https://annepmitchell.substack.com/p/about-yesterdays-5th-circuit-mifepristone
P.S. If you actually read all the way to the bottom please leave a comment that includes the word “math”. It will show me that my efforts aren’t in vain and that people actually *do* read these things, and it will drive those who just skim crazy wondering why everyone is talking about math! ;~)
Source