The nationwide abortion-pill ban ordered by a Texas federal judge last month but partially stayed by the US Supreme Court will get a shot at reinstatement with an appeals panel composed mostly of Donald Trump appointees.

On Wednesday, the 5th US Circuit Court of Appeals in New Orleans will hear appellate arguments on US District Court Judge Matthew Kacsmaryk’s order banning mifepristone on the grounds that the Food and Drug Administration improperly approved it in 2000. The Circuit and the Supreme Court previously stayed that part of Kacsmaryk’s ruling pending the current appeal.

All three of the 5th Circuit judges hearing the appeal were appointed by Republican presidents and two are Trump appointees, as is Kacsmaryk. The appeals court won’t issue a decision on Wednesday, but a potential reinstatement of the abortion-pill ban would punt the issue back to the Supreme Court just as the 2024 election cycle starts heating up.

Each of the appeals court judges hearing the case has a history of opposing abortion. Jennifer Walker Elrod, James Ho and Cory Wilson were selected randomly from among the 17-member 5th Circuit, which handles federal cases from Texas, Louisiana and Mississippi. Elrod was nominated to the court in 2007 by President George W. Bush. Former President Donald Trump nominated Ho in 2017 and Wilson in 2020.

Amarillo, Texas-based Kacsmaryk said in his ruling that it was clear the FDA overstepped its authority when it first approved mifepristone and suggested the agency “faced significant political pressure” to advance the drug. He issued a so-called preliminary injunction that would’ve blocked access to mifepristone while the lawsuit before him continued.

The Circuit will now consider whether to allow Kacsmaryk’s order to take affect instead. The Biden administration wants the appeals court to block the Texas order.

Abortion Opponents

The legal fight over mifepristone got its start in November when a conservative legal group, Alliance Defending Freedom, sued in Amarillo to challenge the FDA approval on behalf of anti-abortion medical organizations and doctors. Lawyers for the group say that the plaintiffs filed a citizen petition with the FDA in 2002 asking officials to review its approval of the drug, but the petition was rejected in 2016.

Their lawsuit alleges the FDA fast-tracked approval of the drug without sufficient scientific evidence through a process reserved for accelerating authorization of drugs used to treat illnesses like cancer and HIV.

It also takes issue with several subsequent decisions by the agency to loosen restrictions on the pill, including a 2016 move to extend the window of use from seven weeks of gestation to 10 weeks and a more recent decision permitting the pill to be distributed through the mail.

Lawyers for the FDA have defended all of the agency’s decisions, arguing that officials followed the law when they approved the drug for use and that mifepristone continues to be a safe and effective method for terminating a pregnancy.

The government also argued the lawsuit should be thrown out because the plaintiffs waited too long to file their complaint after the drug was approved and their citizen petition was rejected.

The appellate case is Alliance for Hippocratic Medicine v. US Food and Drug Administration, 23-10362, 5th US Circuit Court of Appeals.

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