The 5th Circuit Is Learning From Its Supreme Court Smackdowns

On Thursday, a panel of the U.S. Court of Appeals for the 5^th Circuit—often described as the most conservative federal appellate court in the country—issued an opinion in the medication abortion case. The opinion shows acute awareness of the Supreme Court’s unusual interest in this case, as well as long-simmering friction between the Supreme Court and the 5^th Circuit about standing doctrine.

The opinion is best understood as a strategic retreat from a more aggressive position taken by an earlier 5^th Circuit panel in this case. By limiting the legal bases for its ruling, this week’s opinion presents a smaller target for the FDA and Danco Laboratories to attack before the Supreme Court, and thus a greater chance that some part of Judge Matthew Kacsmaryk’s sweeping order—specifically, the part that makes the abortion medication unavailable via telehealth and mail—remains effective.

The novel procedural framework for the 5^th Circuit’s opinion was established on April 21. Nine days after a 5^th Circuit motions panel ruled on an earlier stay application, the Supreme Court completely stayed Kacsmaryk’s order blocking access to the abortion pill mifepristone nationwide, until the Supreme Court reviewed and resolved any certiorari petition arising from the 5^th Circuit’s decision on the merits. In other words, as previously explained in Slate, the Supreme Court made the 5^th Circuit’s opinion moot until the Supreme Court had the opportunity to fully review it.

That’s unusual. In any high-profile case, federal circuit judges know that the Supreme Court will be asked to review their work if the losing party petitions for certiorari. But here, these judges didn’t just know, generally, that the Supreme Court might be skeptical about affirming Kacsmaryk’s order. They knew that the Supreme Court was, in fact, skeptical about doing so.

That knowledge appears to have led this panel to make a strategic retreat on a key issue. The “gorilla in the room” in this litigation is the Comstock Act, an archaic law enacted in 1873 to ban the sending by mail of pornography, contraceptives, and “any drug, medicine, article, or thing designed, adapted, or intended for producing abortion.”

The earlier 5^th Circuit opinion made several strong statements about the Comstock Act’s application to mifepristone, including the mental state required by that law (“a user of those shipping channels violates the plain text merely by knowingly making use of the mail for a prohibited abortion item”), the quality of an Office of Legal Counsel memo about the act (“a variety of aging out-of-circuit opinions and single footnote within one Supreme Court dissent favor the applicants’ position”), and the importance of complying with the act’s plain text (“Danco has no interest in continuing to violate the law, which (under a plain view of the Act) it does every time it ships mifepristone”).

But in this week’s opinion, the majority doesn’t go there. Written by George W. Bush appointee Jennifer Walker Elrod and joined in full by Donald Trump appointee Cory T. Wilson, the opinion holds that Kacsmaryk’s nationwide order revoking the FDA’s original approval of mifepristone in 2000 should not be enforced during the pendency of this litigation, while other parts of the order restricting the ability of doctors to prescribe mifepristone by mail or telemedicine should ultimately remain in place.

Critically, the majority opinion cites only the Administrative Procedure Act to support Kacsmaryk’s ruling about the mailing of mifepristone, arguing that the FDA’s 2016 rule allowing the drug to be prescribed through the mail failed to comply with that law. In a footnote, it states: “Given this holding, we do not consider the Medical Organizations and Doctors’ independent argument that the 2021 Non-Enforcement Decision violates the Comstock Act of 1873.”

That’s a big concession. If the FDA erred procedurally in how it addressed the mailing of mifepristone, it could restart its decision-making process. But if an act of Congress bars the mailing of mifepristone, it’s game over. The majority opinion allows the FDA another chance, while the dissent would not. Essentially, the opinion sets the stage for a future battle over whether the Comstock Act prevents mifepristone from being prescribed by mail, while ceding that ground for now.

Trump appointee James C. Ho concurred in part and dissented in part. His opinion addresses the Comstock Act headlong—quoting the motion panel’s opinion in this case—to argue that its plain terms require acceptance of Kacsmaryk’s ruling about delivery of mifepristone by mail.

Still, even with that concession about the Comstock Act by the panel majority, the Supreme Court may well reverse the 5^th Circuit on standing.

In the 2021 case of California v. Texas, the Supreme Court reversed the 5^th Circuit’s invalidation of the remaining parts of the Affordable Care Act because the plaintiffs lacked standing. In the term just ended, in United States v. Texas, the Supreme Court reversed the 5^th Circuit on standing in a case about the Department of Homeland Security’s standards for making arrests.

And on the last day of the term, when the Supreme Court struck down the Biden administration’s loan forgiveness plan, in the companion case of Department of Education v. Brown, it reversed a ruling against that plan by a district court in the 5^th Circuit because those plaintiffs lacked standing. (The 5^th Circuit did not write an opinion in that case but did deny a stay of the district court’s ruling pending appeal.)

The 5^th Circuit’s mifepristone opinion shows an acute awareness of the plaintiffs’ standing problems and the recent friction between the 5^th Circuit and the Supreme Court about standing. The majority opinion is 63 pages long, 23 of which discuss standing; for good measure, the dissent adds several more pages about it.

Sometimes, a punt is the right play to call. The Supreme Court may be less willing to reengage the 5^th Circuit about standing issues if the basis for the circuit court’s decision is not a sweeping holding about the highly controversial Comstock Act. By sidestepping that statute, the panel majority’s punt on the issues that it raises provides a smaller target for FDA and Danco Laboratories to attack before the Supreme Court.