Well, last week we got another wild decision out of Texas. The 5th U.S. Circuit Court of Appeals issued a decision last Wednesday that (mostly) affirms the ruling from Judge Matthew Kacsmaryk that access to mifepristone, one drug in a two-drug regimen approved by the FDA for medication abortion, should be severely limited. The focus in this ruling is on the FDA’s updates to mifepristone in 2016 and again in 2021, which loosened restrictions on the drug. It’s always worth noting that medication abortion is used in more than half of all abortions in the U.S., and, post-Dobbs, self-managing abortion using these pills has been a crucial point of access, particularly for people who live in states that have banned abortion or severely limited it. To better understand this decision—and what’s next—I called up Mary Ziegler, one of the nation’s premier abortion law experts.

Let’s start by breaking down what happened Wednesday, shall we?

Mary Ziegler: So we’ve had this ongoing struggle around access to mifepristone, which is used in the majority of abortions in the United States. And this time, the Fifth Circuit was weighing [on] in the merits of a case in which plaintiffs argued that the FDA lacked the authority to approve the pill back in 2000 and it lacked the authority to loosen the restrictions later on as well. The Fifth Circuit panel reached the same topline conclusion that the FDA lacked the authority to loosen the restrictions on mifepristone in 2016 and 2021. The challenges to the original approval of mifepristone, the judges said, weren’t timely.

There was also a concurring opinion from Judge [James] Ho that went even further. That opinion said the FDA didn’t have authority to approve mifepristone at all, that the challenge was timely, and that the Comstock Act amounted to a ban on abortion. Judge Ho’s opinion was a partial concurrence and a partial dissent, so nothing changes on the ground. It’s just the Fifth Circuit really giving a read of what they think will work or not work at the Supreme Court.

I do want to talk a little more about Judge Ho’s opinion, because it’s gotten quite a bit of attention. How seriously should we be taking his lens?

I mean, Judge Ho is kind of like the Clarence Thomas of the Fifth Circuit. He actually used to work for Justice Thomas. So I think on the one hand, right, Judge Ho is sort of known for these opinions that he writes that nobody else joins. You don’t want to read too much into it, because he is known for these sort of bomb-throwing solo things. That’s his hallmark. But he also, just like Justice Thomas, has a track record of shifting the Overton Window, because what ends up happening is that people will read Judge Ho’s opinion and think, ‘Wow, that’s pretty extreme.’ Then whatever the rest of the court has done, which can also be pretty extreme, comes across as much more normal and moderate by comparison. So he has the effect of sort of normalizing what other judges are doing, even if just by contrast to whatever judges across the country have done that would still be pretty out there—it comes across as less so, because he is changing what normal is.

There’s stuff in his opinion, particularly the stuff on the Comstock Act, that we should take seriously, even if it doesn’t wind up being the main argument in this case, because he’s previewing arguments we’re going to see continue to get made down the road.

OK, I also have to ask about the aesthetic injury argument he brings up.

Right. It’s an exceptional thing for him to say. One of the big questions in the case is whether the plaintiffs have standing, and they probably don’t. The plaintiffs’ theory of standing was pretty out there anyway. They were essentially saying the complication rate of mifepristone is not zero, and if that’s true, then some percentage of people who take mifepristone will have complications, which then means that some percentage of those people will go to the emergency room, where they might seek care from anti-abortion doctors who may then suffer conscience-based injuries. [NOTE: the complication rate for mifepristone is currently estimated to be around 0.3 percent.] And in fact, many of the doctors who are bringing this suit don’t appear to treat patients often, because they are leading anti-abortion organizations like the Charlotte Lozier Institute.

But Judge Ho wanted to go further and say that in addition to that theory, there was also a question of aesthetic injury. So aesthetic injury usually comes up in the context of environmental protection and concern for endangered species, because one of the questions of who could sue in those cases, because no one is an endangered sea turtle or orca, right? So who had enough skin in the game to sue? Aesthetic injury was a term coined to discuss our general interest in protecting the environment, and particularly endangered species. So Judge Ho says, just as people enjoy seeing endangered species and not having them wiped from the face of the earth, people like seeing images of unborn babies. And the plaintiffs, in particular, like seeing images of unborn babies, so when they have to treat patients with post-abortion complications, that causes them an aesthetic injury, which to my knowledge is not an argument I’ve ever heard before. Ever.

But does this indicate that anti-abortion lawyers are grappling with this question of standing and how to get around it in future cases?

Yeah. The majority in this case spends more than 35 pages on standing, which is pretty unusual. I think standing being a weakness, Ho is trying to throw things at the walls to see what would stick, but I think also both the majority and Ho are doing their best to make a case for standing, even when it’s pretty obviously a weakness of the case.

How do you think that this case would play in front of the Supreme Court now?

I would hope it wouldn’t play well. Old fights about standing were, predictably, the opposite of what they are now, because when the Supreme Court was less conservative, it was often progressive movements that were arguing for more liberal theories of standing to make it easier to get to court. And conversely, it was, you know, conservatives who are often promoting narrower theories of standing, but no one has promoted theories of standing this broad, so you’d think, regardless of your politics, that this case was a dud. All that should mean that this case won’t work. And we also have one not-super-revealing data point that the Supreme Court issued a stay originally in the spring. One of the factors in a stay is a prediction as to what’s going to happen when the case is all said and done. So we would believe, based on that, that the court is already skeptical.