Associated Press//May 16, 2023
//May 16, 2023
NEW ORLEANS — Three conservative appeals court judges, each with a history of supporting restrictions on abortion, will hear arguments May 17 on whether a widely used abortion drug should remain available.
The case involves a regulatory issue — whether the Food and Drug Administration’s approval of mifepristone, and subsequent actions making it easier to obtain, must be rolled back. The appellate hearing follows an April ruling by a federal judge in Texas, who ordered a hold on federal approval of mifepristone in a decision that overruled decades of scientific approval. His ruling was stayed pending appeal. The case was allotted to a panel made up of Jennifer Walker Elrod, James Ho and Cory Wilson.
The three judges of the New Orleans-based 5th U.S. Circuit Court of Appeals won’t rule immediately. Their decision, whatever it is, is also unlikely to have an immediate effect pending an expected appeal to the U.S. Supreme Court.
Here’s a look at who the judges are and their track records.
JENNIFER WALKER ELROD
Nominated to the court in 2007 by Republican President George W. Bush, Elrod was among several 5th Circuit judges allowing Texas to temporarily ban abortions as the coronavirus pandemic took hold in early 2020.
Elrod also was co-author of the opinion when the full 5th Circuit upheld in 2021 a Texas law outlawing an abortion method commonly used to end second-trimester pregnancies.
That same year, she wrote for a panel that refused to order Louisiana to issue a long-stalled license for a Planned Parenthood abortion clinic in New Orleans, saying “there is no free-standing federal right to receive an abortion-clinic license.”
In the Texas case involving pandemic restrictions, she was part of a panel allowing what amounted to a ban on abortions — including medication abortions — by classifying them as non-essential procedures legally postponed under an order by Gov. Greg Abbott. The 2020 order was in effect for about a month.
Elrod was in favor of decisions upholding Texas and Louisiana laws requiring doctors at abortion clinics to have admitting privileges at nearby hospitals — a move abortion rights advocates said would force some clinics to close.
When the full court narrowly refused to let Louisiana officials cut off Medicaid funding for Planned Parenthood facilities in the state, Elrod wrote the dissent.
Elrod also boasts a high profile in 5th Circuit decisions on regulatory issues. One, if upheld by the Supreme Court, could limit the authority of the Securities and Exchange Commission to impose hefty fees and fines. Another, eventually struck by the Supreme Court, held that the “individual mandate” in former President Barack Obama’s signature health care law had been rendered unconstitutional by congressional action.
A former Texas solicitor general, Ho is the first Asian-American to serve on the 5th Circuit and is a former clerk for Supreme Court Justice Clarence Thomas. He was nominated to the 5th Circuit in 2017 by Republican President Donald Trump. His opposition to abortion and abortion rights was clear early in his tenure, including referring to abortion as a “moral tragedy” in one 2018 opinion.
In 2019, he wrote a 15-page grudging concurrence in a ruling that said a Mississippi abortion ban had to be struck down under then-existing court precedent. “Nothing in the text or original understanding of the Constitution establishes a right to an abortion,” he wrote.
He went on to cite “the racial history of abortion advocacy as a tool of the eugenics movement.” He harshly criticized a lower court for declining to consider arguments that a fetus can feel pain, and for displaying “an alarming disrespect for the millions of Americans who believe … that abortion is the immoral, tragic, and violent taking of innocent human life.”
That opinion was written in the case the Supreme Court ultimately used to overturn Roe v. Wade.
Nominated to the federal appeals court in 2020 by Trump, Wilson is a former Mississippi appeals court judge who had a strong anti-abortion record when he served in the Mississippi House from January 2016 to February 2019 as a Republican. Abortion rights supporters opposed his confirmation to the federal appeals court. They noted he had expressed support for “complete and immediate reversal” of the Roe v. Wade decision in a questionnaire from Mississippi Right to Life’s political action committee.
Wilson voted for anti-abortion measures in 2016, including one to stop Medicaid funding to Planned Parenthood facilities in the state — a measure rejected in court. In 2018 he voted for the Mississippi law that ultimately led to the demise of Roe v. Wade in 2022. The law prohibited most abortions after 15 weeks.
At the 5th Circuit, Wilson joined Elrod, Ho and a majority of the full court in 2021 in upholding a Texas law outlawing an abortion method commonly used to end second-trimester pregnancies. He had voted for a similar law in the Mississippi Legislature.
Kevin McGill reports for The Associated Press.
Associated Press reporter Emily Wagster Pettus in Jackson, Mississippi, contributed to this report.i