Everything You Need To Know About The Abortion Pill Ruling Is: PANIC.

A lawsplainer of THIS IS SOME FUCKED UP SHIT.

It is important to understand that this was not a win . The fact that mifepristone remains technically legal in blue states right now does not mean that it will not be banned in short order by the howler monkeys Trump and Mitch McConnell parked on the federal bench. Do not interpret the limited stay granted in the dead of the night by the Fifth Circuit as a sign that medication abortion is going to remain available to women in this country.IT IS NOT.

With that primal scream as preamble, let's take a closer look at what is going on with the Texas case of Alliance for Hippocratic Medicine v. FDA , and the competing decision in State of Washington v. FDA. 

The most important thing to understand here is that the Texas case is pure Calvinball. It's based on multiple lies, and a blatantly nonsensical interpretation of standing. That is why the panel of judges assigned to it issued multiple orders without putting their names on them. See this scheduling order signed by the court clerk on Tuesday when there was clearly a three-judge panel already in place?

 Not normal. 

Nor is it normal for federal judges to lie so egregiously about the facts, omitting to mention the four years of FDA testing before mifepristone was put on the market. Instead, the two Trump appointees who authored this opinion, Judges Kurt Engelhardt and Andrew Oldham, like their fellow white brother Judge Matthew Kaczmaryk in the trial court, adopted the plaintiffs' lie about a rushed 2000 authorization for mifepristone.

"In the 2000 Approval, FDA concluded that pregnancy is a 'life-threatening illness,' triggering an accelerated approval of mifepristone under Subpart H," the panel wrote, eliding the fact that Subpart H wasn't not used to accelerate the approve at all — it was in fact used to add dispensing protocols that inhibited access to the drug.

And like Kaczmaryk, Engelhardt and Oldham continue to lie about the dangers of this medication, which is safer than plenty of commonly prescribed antibiotics, not to mention Viagra, which is associated with hundreds of deaths a year, not to mention emergency room visits.

Here's how these supposedly serious jurists quantify the danger from mifepristone, a drug which is available in upwards of 80 countries:

First they cite the change in dispensing protocol that allows the drug to be mailed or prescribed remotely.

Then they look at the warning label, which says that it will fail to effectively end the pregnancy for between 2 and 7 women who take it and may require surgery to remove tissue which is not expelled.

From this, they infer that between 100,000 and 350,000 women who took the drug since 2000 have required surgery, despite there being absolutely zero evidence of this wave of women showing up at hospitals and sticking their whore uteruses in doctors' faces. (Sorry, not sorry.)

And to close the loop, they declare that, because all these women "cannot possibly go back to their non-doctor-prescribers for surgical abortions," they show up at emergency rooms and burden the poor doctors there with their incomplete abortions. This requires a minor sleight of hand to hide the reality that lots of women actually have a gynecologist whom we could call in that situation, and anyway most women will not require surgery. But these guys did what they had to do to get to this fuckbonkers theory of standing that elevates the sad feeling of doctors who may have to save the lives of patients who present at the ER asking for medical treatment.

Despite the anecdotal evidence presented in this case and gleefully served up by Kurt 'n' Andy, there has not been a red tide of women bleeding from their vaginas all over emergency departments in America since the dispensing protocols for this drug were relaxed in 2016. But even if it were true, that would not confer standing on ER doctors to sue under any plausible legal precedent. As law professor Leah Litman points out , to prove standing, you have to demonstrate that you will be harmed. And the plaintiffs here have not proved that they will be forced to care for women who took mifepristone. Inferring that "it’s also inevitable that at least one doctor in one of these associations will face a harm in the future" does not cut it, nor do tears for the "irreconcilable choice between performing their jobs and abiding by their consciences" faced by doctors who "structured their careers so they would not have to administer abortions."

And implying that selfish women are cluttering up ERs and stealing the last blood transfusion from more deserving patients is filthy:

As a result of FDA’s failure to regulate this potent drug, these doctors have had to devote significant time and resources to caring for women experiencing mifepristone’s harmful effects. This harm is sufficiently concrete.

By that logic, ER doctors would have standing to sue Harley Davidson for putting out a product that is so much less safe than cars. Or, hell, why not Smith & Wesson, since doctors are forced to devote so many resources to patching up gun shot victims?

There's also some extreme fuckery on the subject of administrative exhaustion, i.e. the prerequisite to filing a lawsuit here :

“We'll break down last night’s atrocious 5th Circuit mifepristone ruling in Alliance v. FDA on tomorrow’s show. For now, let's look at just one misleading claim: that the FDA took “fourteen years” (in scary italics!) to rule on Plaintiffs’ petition. /1 https://t.co/2f0TCIy9nS”

— Opening Arguments (@Opening Arguments) 1681411800 

(Full disclosure: I appear on this show, in case that wasn't clear from the plug in my bio.)

And the cherry on the top of this shit sundae is the panel's adoption of Judge Kacsmaryk's adoption of the Comstock Act of 1873, an anti-vice law which made it illegal to send "obscene" materials through the mail. The law is patently illegal under the First Amendment, and hasn't been enforced since Margaret Sanger successfully challenged it in a 1936 case involving the importation of birth control devices. Nevertheless, all three of these male judges seize upon its prohibition of using the postal service to ship abortifacients as if it were good law. This requires ignoring a 2007 statute enacted by Congress that allows mailing mifepristone, but when it comes to taking health care away from women, they're down for whatever .

The only difference between Kurt and Andy's holding, and that of their pal Matt is that they softened the blow (more like postponed, really), by saying that the six-year statute of limitations on challenging the approval blocks the plaintiffs' challenge to the original 2000 authorization for mifepristone, but with all kinds of dispensing rules. Instead they blocked the 2016 and 2021 modifications, which relaxed those rules and authorized a generic version of the drug — although how these poor, delicate doctors will be protected by blocking a generic is unclear.

Attorney General Merrick Garland has promised to file an emergency appeal to the Supreme Court, but this disingenuous can-kicking by the appellate court is likely to provide just enough of a fig leaf for five members of the disaster SCOTUS to sign off on this bullshit — assuming they take it, as the competing Washington ruling is working its way through the system and don't find some way to dodge. And make no mistake, if these two judges are on the panel when this case gets heard on actual merits, they're going to ban this drug completely.

The time to panic is RIGHT FUCKING NOW.

[ Alliance for Hippocratic Medicine v. FDA , trial docket via Court Listener / Alliance for Hippocratic Medicine v. FDA , appellate docket via Court Listener / State of Washington v. FDA , docket via Court Listener]

Catch Liz Dye on Opening Arguments podcast.

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