Yesterday the U.S. Court of Appeals for the Fifth Circuit issued an unpublished order in Alliance for Hippocratic Medicine v. Food and Drug Administration, partially staying last week's district court order effectively suspending the FDA's approval of mifepristone, a widely used abortion medication. The 42-page order was considered and produced on an extremely tight schedule, and managed to correct some of the more egregious errors in the lower court's decision. But the Fifth Circuit panel's decision still has some problems, some of which I highlight below.
The stay requests were filed by the FDA and Danco Laboratories, a manufacturer of mifepristone. The panel considering the stay applications consisted of Judges Oldham, Engelhardt, and Haynes. The unsigned per curiam order granted a stay pending appeal covering parts of the district court's order. Basically, the panel stayed those portions of the order suspending the FDA's 2000 approval of mifepristone, but not those concerning actions taken by FDA concerning mifepristone in 2016 or later. Judge Haynes concurred only in part, as she would have granted an administrative stay of the lower court ruling in its entirety, and deferred consideration of the stay pending appeal to the merits panel ultimately assigned the case. (Note that, contrary to some reports, this does not mean that Judge Haynes disagreed with her colleagues on any points. It could instead merely indicate that she did not want to resolve some of these questions on an expedited basis.)
As for the substance of the opinion, there are some good things about the Fifth Circuit's order, particularly when compared to the work of the district court. For starters, the Fifth Circuit recognized that AHM's challenges to the FDA's 2000 approval of mifepristone are barred by the applicable statute of limitations, even when one considers the reopening doctrine. The panel also did not buy the creative equitable tolling argument advanced by the district court. It further rejected AHM's too-clever argument that the FDA's appeal should be dismissed because the district court's stay was insufficient to grant the Fifth Circuit interlocutory appellate jurisdiction. This argument was quickly and correctly dispatched in a brief footnote.
