Featured Image
Chief Judge of the United States Court of Appeals for the Fifth Circuit Priscilla RichmanBaylor University

(LifeSiteNews) — Any day now a Texas judge will announce his decision whether to block the Food and Drug Administration’s (FDA’s) approval of chemical abortion drugs used in more than half of all U.S. abortions. 

There are a lot of possible outcomes ranging from a nationwide ban on the pills to simply restoring past “safeguards” that were designed to reduce health dangers to the women who take those drugs. 

But the judge in Texas will not have the final say. 

READ: Texas case which could stop the sale of abortion drugs in the US begins March 15 

Much of the media attention is focused on the conservative Texas judge who heard the case and promised to render a decision soon, but no matter what he decides it is practically inevitable that his decision will be appealed to the Fifth Circuit Court of Appeal. It may go from there to the U.S. Supreme Court, or not, since the Supreme Court chooses which cases to take. 

What will the Court of Appeal do?

The task for a Court of Appeal is to review the lower court’s legal findings. In this case, the main issue is whether the FDA circumvented legal requirements in 2000 when it approved the abortion pill without adequate testing for health dangers to pregnant women. A second big issue is whether the FDA skirted the law again in 2016 when it allowed at-home chemical abortions, and in 2021 when COVID was used as an excuse for mail-order chemical abortions, further politicizing medicine without fully considering the health risks. 

READ: FDA axes in-person requirement for abortion pills, allows them to be sent by mail  

The basic question is whether unelected, unaccountable bureaucrats at the FDA overstepped their legal authority in order to play politics. 

The Fifth Circuit Court of Appeal is generally considered a very conservative Court. Here are some of their recent cases dealing with federal agency overreach. While some of the details are tedious, the point is that this court takes very seriously the legal constraints on federal agencies like the FDA. That bodes well for a case seeking to limit the FDA’s approval of abortion drugs. 

  1. On March 23, 2023, the Fifth Circuit ruled in the case of RJ Reynolds v. FDA that the FDA exceeded its legal authority in creating a de facto ban on flavored e-cigarettes. Whatever one thinks of E-cigarettes (or even if you don’t know what they are), the point is that the Fifth Circuit ruled that the FDA has no right to skirt mandatory federal administrative law procedures.
  2. Last fall, the Fifth Circuit ruled in Community Financial Services v. CFPB that the funding mechanism for the Consumer Financial Protection Bureau (CFPB) is unconstitutional since it bypasses Congress’ annual budget process that is supposed to control government spending. The CFPB gets money from the Federal Reserve outside the normal government budget process. This case has been appealed to the U.S. Supreme Court so it may or may not stand, but it shows the Fifth Circuit’s general disdain for unaccountable federal agencies.
  3. The Fifth Circuit in SEC v. Jarkesy held that the SEC’s use of their own administrative agency judges to hear cases of investment fraud, outside the regular federal court system, is unconstitutional since there are no provisions for jury trials and the administrative judges are generally immune from removal. The legal principle in this case is significant since it could apply to other federal agencies as well, moving substantial federal powers away from the administrative agencies.

We certainly hope the Texas judge will make the right decision on abortion pills but we know there will be an appeal either way to the Fifth Circuit Court of Appeal. The good news is that the Court of Appeal seems willing to limit federal agency powers, hopefully including the FDA’s approval of abortion pills. 

Will that end things? Probably not. A new case was filed recently in the state of Washington by a group of 17 Democratic State Attorneys General asking that Court to do just the opposite of what the Texas Court is being asked. The Washington Court and its appellate circuit are generally quite liberal so it is possible that we will end up with conflicting decisions, or potentially inconsistent results in different parts of the country. That would enhance the likelihood of the U.S. Supreme Court deciding the matter. 

The U.S. Supreme Court is a wild card. The Supreme Court has been historically deferential to federal agencies like the FDA, but some recent cases suggest that may be changing, especially if the Justices can be convinced that the agency overstepped its legal authority in order to play politics.