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We just learned which judges will be handling the Texas abortion pill litigation next — and it’s a bad sign for abortion rights. All three of the judges on the 5th U.S. Circuit Court of Appeals panel were appointed by Republican presidents, and two of them were appointed by Donald Trump. Their conservative bona fides are well established, with one of them even referring to the “moral tragedy of abortion” in an opinion.
The two Trump appointees are James Ho (the “moral tragedy” opinion author) and Cory Wilson; the third member of the panel, Jennifer Elrod, was appointed by George W. Bush. The judges will hear arguments on May 17, after the case was sent back to the 5th Circuit by the Supreme Court. Recall that, last month, over dissent from Justices Clarence Thomas and Samuel Alito, the Supreme Court blocked restrictions imposed by the 5th Circuit and anti-abortion Judge Matthew Kacsmaryk while litigation continues.
The issue of abortion was thrown into chaos with the Supreme Court’s Dobbs ruling last year and Kacsmaryk’s unprecedented order in April that suspended the Food and Drug Administration’s approval of mifepristone, a commonly used abortion medication.
Before the Supreme Court’s order, a different 5th Circuit panel, with two different Trump appointees in the majority, narrowed Kacsmaryk’s ruling. But without that Supreme Court intervention, the previous panel’s narrowed ruling still would have imposed hurdles to abortion access, including blocking patients from receiving mifepristone by mail.
While the Supreme Court could have the last word, there’s every reason to think that, in the meantime, this latest panel of GOP-appointed judges will do everything it can to carry the torch of the Dobbs court and the broader anti-abortion movement that created it.