Public Domain
Clarence Thomas
Clarence Thomas
Most Americans know the most dangerous court in the nation now is the U.S. Supreme Court with its lopsided, rightwing, Trumpian supermajority open to abolishing constitutional rights that women, racial and religious minorities and LGBTQ Americans once thought they’d won in our democracy.
They may not realize the second most dangerous court threatening all our lives is the Fifth Circuit U.S. Court of Appeals based in New Orleans. Legal experts call it “the Trumpiest court in America where law goes to die.”
That’s unfortunate since it feeds a stream of new cases into the Supreme Court. It’s the court that sent the justices Mississippi’s Dobbs case brazenly violating Roe v. Wade. After openly lying about respecting court precedents, the Supreme Court’s anti-abortion supermajority leaped at the chance to terminate a half-century of freedom for American women to control their own lives.
Striking Down a Safe Drug
Now the Fifth Circuit is ready to strike down the Food and Drug Administration’s approval 23 years ago of the safe and effective abortion drug mifepristone used in more than half of US abortions.
Public Domain
Anthony Comstock
Anthony Comstock
To create a nationwide ban on safe medication abortions, the Fifth Circuit is eager to revive a 150-year-old law passed in 1873 by a crusading 1800s anti-abortion and anti-pornography U.S. Postal Inspector named Anthony Comstock. It would outlaw using the mails to distribute safe abortion pills to anyone, even those living in states where abortion is legal.
That’s the same tactic Wisconsin Republicans used to ban abortions reviving an outdated 1849 law passed a year after Wisconsin became a state. Even worse, the Fifth Circuit has the power to impose the extreme decisions by far-right judges in Texas, Louisiana and Mississippi on all Americans.
In fact, the court tried to ban abortion pills nationwide while it considers the government’s appeal of anti-abortion Texas Judge Matthew Kacsmaryk’s legally dubious decision throwing out the FDA’s approval of mifepristone but was overruled.
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Kacsmaryk’s decision is more of an inflammatory, anti-abortion screed than a legal opinion. He called medical professionals providing health care to women abortionists endangering women’s lives with a dangerous drug that “halts nutrition (to a fetus) and ultimately starves the unborn human until death.”
Few Complications
Actually, fewer than 1% of millions of medication abortions over 23 years have ever led to any significant physical complications.
The Fifth Circuit failed in its attempt to enforce Kacsmaryk’s abortion pill ban on mifepristone while hearing the case because—surprise—the Supreme Court prevented it. The court voted 7 to 2 vote to restore the FDA’s approval of mifepristone, an incredibly safe drug statistically far less dangerous than over-the-counter Tylenol. Only Justices Samuel Alito and Clarence Thomas, the court’s most vicious opponents of women’s reproductive rights, voted no.
No one should think the Supreme Court is mellowing on abortion or women’s equality. It’s more likely the justices just wanted to avoid the raging political backlash for abolishing Roe stirred up for as long as possible.
That won’t stop voters from turning out in record numbers to restore abortion rights anytime soon. Women who once had rights will never forget everything they lost. They’re supported at the polls by everyone who cares about that sort of thing including millions of young votes coming of age every election.
Out of Step
The U.S. Supreme Court and the Fifth Circuit are out of step with the majority of Americans. Trump and Republican leader Mitch McConnell stacked both courts with appointees screened by the rightwing Federalist Society for their willingness to destroy abortion rights, immigration rights and equal voting rights for all Americans.
Among the 17 active judges with lifetime appointments to the Fifth Circuit, 12 are Republican appointees including six Trump appointees.
The three-judge panel attacking the FDA for approving a safe abortion drug were two Trump appointees, James Ho, a former law clerk to Justice Thomas, and Cory Wilson, who’s written a series of racist and homophobic columns in Mississippi newspapers and has a toxic Twitter feed that could easily be mistaken for Trump’s.
The third judge Jennifer Elrod, appointed by George W. Bush, was incensed that an attorney participating in the court’s hearing harshly criticized Judge Kacsmaryk for citing dishonest statistical data to justify banning mifepristone. How can rightwing judges ban abortions if they aren’t allowed to cite dishonest statistical data?
Extreme anti-abortion Republicans consider the 1873 Comstock law the path to a nationwide abortion ban. “The way I see it,” said the anti-abortion Texas activist behind the Kacsmaryk case, “we already have a de facto federal ban on abortion. We’ve just got to enforce it.”
It’s obvious why Republicans want to live under the laws of the 1800s. That’s when only white males had any rights at all in America. Those were the days.
It really is time for a new civil rights movement in our country to restore the rule of law in our courts protecting equal constitutional rights for every American.
