3 judges who chipped away abortion rights to hear federal abortion pill appeal

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FILE – Boxes of mifepristone are displayed on a shelf in the West Alabama Women's Center, Tuscaloosa (Ala.), on March 16, 2022. On Wednesday, May 17 2023, legal arguments regarding women's access of a drug that is used to perform the most common form of abortion will be heard in New Orleans by a federal court. The case challenges a Food and Drug Administration ruling made over two decades ago.

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FILE – Then-Mississippi State Rep. Cory Wilson (R-Madison), discusses a transport issue at a House Transportation Committee Meeting in Jackson, Miss. on February 17, 2016. Wilson and two other conservative judges from the appeals court, who have a long history of opposing abortion restrictions, will be hearing arguments on Wednesday, May 17th, 2023 on whether an abortion drug widely used should continue to be available.

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FILE – James Ho gives testimony during a Senate Judiciary Committee nominations hearing at Capitol Hill, Washington, on Nov. 15, 2017. Ho was nominated as a United States Circuit judge for the Fifth Circuit. Ho and three conservative appeals court judge, who have a long history of supporting abortion restrictions, will be hearing arguments on Wednesday, May 17th, 2023 on whether an abortion drug widely used should continue to be available.

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NEW ORLEANS, LA (AP) - Three conservative judges from the New Orleans Court of Appeals, who have each supported restrictions on abortion in the past, will hear arguments on May 17, regarding whether a commonly used abortion drug can remain on the market.

This case is about a regulatory question -- whether or not the Food and Drug Administration must roll back its approval of mifepristone and actions that made it easier to get. The appeals hearing followed an April ruling from a federal Texas judge who put a stop to federal approval of the mifepristone drug. This decision overruled decades' worth of scientific approval. The judge's ruling was suspended pending an appeal. The case was assigned to a panel consisting of Jennifer Walker Elrod James Ho and Cory Wilson.

The five judges of New Orleans' 5th U.S. The Circuit Court of Appeals will not rule immediately. It is unlikely that their decision will have immediate impact, pending the expected appeal before the U.S. Supreme Court.

Check out the track record of our judges.

JENNIFER WALKER ELROD

Elrod, who was nominated by Republican President George W. Bush in 2007, was one of several 5th Circuit Judges to allow Texas to temporarily ban all abortions when the coronavirus epidemic began in early 2020.

Elrod was also co-author when the 5th Circuit ruled in 2021 that a Texas law prohibiting a method of abortion commonly used to terminate second-trimester pregnancy would be upheld.

She wrote the same year for a panel which refused to order Louisiana issue a license to a Planned Parenthood clinic in New Orleans that had been stalled for years, stating 'there is not a free-standing federal rights to receive an license to operate an abortion-clinic.

The order 2020 was in place for a little over a month.

Elrod supported decisions that upheld Texas and Louisiana laws that require doctors in abortion clinics have admitting privileges with nearby hospitals. Abortion rights advocates argued this would force some clinics into closure.

Elrod authored the dissent when the court refused to allow Louisiana officials to cut off Medicaid funding in Louisiana for Planned Parenthood centers.

Elrod is also a prominent figure in 5th Circuit cases on regulatory issues. If upheld by Supreme Court, one could limit the ability of the Securities and Exchange Commission (SEC) to impose heavy fees and fines. The Supreme Court struck down a second ruling that held the 'individual requirement' of former President Barack Obamas health care law was unconstitutional.

JAMES HO

Ho, a former Texas solicitor-general and former Supreme Court Justice Clarence Thomas's clerk, is the first Asian American to serve on 5th Circuit. In 2017, Republican President Donald Trump nominated him to the 5th Circuit. Early in his tenure, his opposition to abortion and the right to an abortion was evident. He even referred to abortion in one of his 2018 opinions as a "moral tragedy".

He wrote a 15 page grudging agreement in 2019 to a ruling which said that a Mississippi abortion prohibition had to be overturned under the existing court precedent. He wrote that 'nothing in the Constitution's text or the original understanding establishes the right to abortion'.

He then cited 'the racist history of abortion as a tool for the eugenics movements.' He harshly criticised a lower court that refused to consider arguments that the fetus could feel pain and displayed 'an alarming lack of respect for the millions who believe that abortion is an immoral, tragic and violent taking innocent human life.

This opinion was written for the case that the Supreme Court used to ultimately overturn Roe V. Wade.

CORY WILSON

Wilson was nominated by Trump to the federal appellate court in 2020. He is a former Mississippi court of appeals judge with a strong record against abortion when he served as a Republican in the Mississippi House between January 2016 and February 2019. Abortion right supporters opposed his nomination to the federal court of appeals. In a Mississippi Right to Life political action committee questionnaire, he expressed his support for "complete and immediate reversal of Roe v. Wade".

Wilson voted in 2016 for anti-abortion legislation, including one that would have stopped Medicaid funding from Planned Parenthood in the state – a measure that was rejected by a court. In 2018, he voted in favor of the Mississippi law which ultimately led to Roe v. Wade's demise in 2022. The law banned most abortions beyond 15 weeks.

In 2021, Wilson, Elrod, Ho, and the majority of the 5th Circuit Court upheld a Texas law that outlawed a method commonly used for ending second-trimester pregnancy. Wilson had supported a similar bill in the Mississippi Legislature.

This report was contributed by Associated Press Jackson, Mississippi reporter Emily Wagster Pettus.