By Amee Vanderpool
Late yesterday, the Fifth Circuit Court of Appeals ruled that the abortion pill, Mifepristone, would not be completely suspended in accordance with US District Judge Kacsmaryk's ruling last week. The appeals court ultimately declined to suspend the approval of Mifepristone but left substantial restrictions in place that will limit how it can be used and will prevent it from being sent to patients in the mail.
The appeals court was divided in their 2-1 ruling, with Judges Kurt Engelhardt and Andrew Oldham, both appointees of President Donald Trump, in the majority. Judge Catharina Haynes, an appointee of President George W. Bush, said she would have temporarily blocked Kacsmaryk’s ruling in full.
The Court concluded that while anti-abortion activists had waited too long to challenge the 2000 FDA approval of Mifepristone in court, claims against the 2016 revisions and later decisions were ripe to be pursued because the government and drug maker Danco Laboratories "have not shown that plaintiffs are unlikely to succeed on the merits of their timely challenges."
Anaiya Deloatch, who supports abortion rights, poses for a portrait at a rally on July 4, 2022 in Philadelphia, Pennsylvania. The host organization, Rise Up 4 Abortion Rights, held several protests all over the country on Independence Day. (Photo by Hannah Beier/via Getty Images)
The appeals court determined that the obscure 19th Century Comstock Act, which prohibits the mailing of any drug or medicine that can be used for abortion, factors into its analysis of the 2021 decision to allow Mifepristone to be distributed by mail. (Activist Margaret Sanger lobbied for overturning the Comstock Act’s birth control provisions, which the courts did in United States v. One Package (2d Cir. 1936). This decision made it possible for doctors to legally mail birth control devices and information throughout the country.)
The Fifth Circuit has stated that it would expedite its full consideration of the case, which means we might still get more detail or instruction in a later ruling. Regardless, the case is likely to be heard at the Supreme Court level soon.
Abortion rights activists and supporters participate in a RiseUp 4 Abortion Rights rally at Union Square in New York, on May 26, 2022, in response to the Supreme Court's leaked draft opinion indicating the Court could overturn Roe v. Wade. (Photo by Timothy A. Clary/via Getty Images)
On April 7, Trump-appointed federal judge Matthew Kascmaryk ordered the FDA to withdraw its approval of Mifepristone, a medication that is safer than Tylenol and is used in more than 50% of abortions in this country. This order is scheduled to go into effect on April 14.
Kascmaryk’s ruling was saturated with the language of a Handmaid’s Tale theocracy, equating abortion to the killing of children and resurrecting the 1873 Comstock Act, an arcane “chastity” ban that could lay the basis for criminalizing abortion nationwide.
While it is possible that this decision will be stayed or delayed, no one should sit back and wait to see how the powers-that-be will respond.
Biden promises to fight this ruling in the courts – but the highest court, the Supreme Court, is packed with fascists who ripped away the constitutional right to abortion last year. Biden says: “[T]he only way to stop those who are committed to taking away women’s rights and freedoms in every state is to elect a Congress who will pass a law restoring Roe versus Wade” – but the Democrats had 50 years to codify abortion rights, and they never did! On top of that, the fascist Republicans attempted a coup on Jan 6, 2021. They illegitimately expelled Black state representatives in Tennessee. In response to Trump’s recent arrest, Tucker Carlson said it's “not time to give up your AR-15s.” Counting on these fascists to respect a meaningful election they lose is delusional.
We must rely on ourselves!
Now is the time to raise YOUR voice in opposition. Take to the streets. Disrupt business as usual. Mobilize the one force that can compel those in power to back off their assault on abortion rights – the masses of people standing up in our hundreds and soon thousands and then millions.
Rise Up 4 Abortion Rights!
Find or host a protest here
