The legal war over access to mifepristone, a pill used in the majority of abortions in the United States, continued this week with another decision from the Fifth Circuit Court of Appeals. The court, widely believed to be the most conservative circuit court in the nation, held that the Food and Drug Administration lacked the authority to lift restrictions on mifepristone in 2016 and 2021. If the ruling were ever to go into effect, that would mean abortion seekers in many states would be able to access the pill only for seven weeks of pregnancy rather than 10. And women who need abortion pills also would have to make multiple visits to a physician in person rather than relying on telehealth.
For the moment, nothing has changed, because the Supreme Court issued a stay as the case continues.
But the landscape has shifted nonetheless, and to a large extent it’s because of the separate opinion penned by Judge James Ho, a Trump nominee who is one of the most conservative judges in the country.
Judge Ho’s opinion concurred with the majority in part and dissented in part, and his dissent appears to have been carefully crafted to lay the groundwork for revolutionizing both the law of standing and the law of abortion.
Start with the question of standing.
The lawsuit in this case was filed by the Alliance for Hippocratic Medicine, an antiabortion group.
It seemed hard to believe that the doctors in the Alliance had standing to sue. But Ho’s colleagues on the Fifth Circuit explained that many patients take mifepristone and some percentage of them experience complications. Some of those patients might seek care from the plaintiff doctors, who might struggle to reconcile their religious or moral objections to abortion with their duties to patients. That all of this may never come to pass did not matter: The court thought the plaintiffs had standing anyway.
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Yet even that was not enough for Judge Ho, who also argued that doctors who enjoyed working with pregnant patients and celebrating the idea of an “unborn baby” could suffer an “aesthetic harm” if they had to work with someone suffering post-abortion complications.
The majority too was ready to turn back time to before 2016, limiting mifepristone access to the first seven weeks of pregnancy and requiring in-person visits to obtain the drug. But Judge Ho wanted to go further, undermining the original approval of mifepristone in 2000. And he wanted to establish that the 1873 Comstock Act serves as a de facto national ban on abortion, barring the mailing of any “article or thing designed, adapted, or intended for producing abortion.”
Ho, like his Supreme Court counterpart and former boss Clarence Thomas, is known for bomb-throwing solo opinions. It would be easy to dismiss him as an extremist not adept enough at judicial politics to sway the Supreme Court or even win over a majority on his own court. But anyone who reads Ho’s opinion carefully knows what he is up to: By staking out a more extreme position, Ho’s opinion normalizes the already sweeping changes sought by the circuit court’s majority. That’s also been the role played by Justice Thomas: He redefines what it means to go too far and makes previously out-of-bounds opinions seem sane by comparison.
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We’ve already seen how a figure like Thomas can transform a court. Thomas has changed very little since he joined the Supreme Court — and still is one of the most conservative justices — but the rest of the court has changed around him. Now, when Brett Kavanaugh writes that the Constitution is scrupulously neutral on abortion, as he did in Dobbs v. Jackson Women’s Health Organization, or when the majority opinion in Dobbs threatens rights to contraception or same-sex marriage, that conclusion can be painted as part of the conservative mainstream.
Judge Ho’s role in shifting the Overton window is especially important in the mifepristone fight. The Supreme Court has not seemed convinced by the position taken by the antiabortion doctors, at least so far. Ruling on a stay requires the court to decide who is likely to prevail on the merits — and by siding with the Justice Department, a majority of the justices suggested that the FDA would ultimately prevail. The court could have drawn this conclusion for many reasons. The plaintiffs’ case for standing is remarkably thin; the case was filed decades after mifepristone’s approval and is untimely. On the merits, the plaintiffs seek to revive the Comstock Act, a zombie sexual purity law, and set a precedent that could make it easy to challenge the approval of any controversial drug. All of this may seem like too much for a court that has seen its reputation damaged by the Dobbs decision.
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That’s where Judge Ho comes in — to make the Fifth Circuit majority seem sober and sensible in comparison — and to make a revolutionary ruling look like a compromise. Judge Ho, like members of the antiabortion movement, is playing the long game. That is the lesson of Dobbs and much that has come after it: What seems extreme and unthinkable now won’t stay that way for long.
Mary Ziegler is a professor of law at the University of California, Davis. Her latest book is “Roe: The History of a National Obsession.”