Dem 51
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GOP 49
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Fifth Circuit Guarantees Abortion Issue Isn't Going Anywhere

A second item on Ohio (above), and now a second item on abortion policy. Anti-abortion activists do not like the abortifacient mifepristone because they see it as an end-run around abortion bans. And consistent with their habit of overreaching, these activists are not content to ban the pill in red states; they want it banned nationwide. If that is one's goal, then it's obvious which federal circuit you want to head to. And so it is that a three-judge panel of the arch-conservative Fifth Circuit ended up hearing a case about the legality of the drug.

Yesterday, the three judges—Jennifer Walker Elrod (Bush 43 appointee) and Cory T. Wilson and James C. Ho (both Trump appointees) issued their ruling. Ho, since he was sworn in as a federal judge on the Texas estate of Harlan Crow (true story!), has developed quite a reputation for putting his partisan goals ahead of the law. He takes the position that abortion is a "moral tragedy," and he wanted to outlaw the use of mifepristone entirely. Elrod, writing for the Court, and Wilson weren't willing to go that far. However, they did rule that online ordering, mail delivery and pharmacy dispensation are all illegal. They also decreed that only physicians can prescribe and distribute the pills, and that the cutoff for receiving a prescription is 7 weeks rather than the current 10.

The new ruling has already been stayed, pending a hearing before, and a ruling from, the U.S. Supreme Court. SCOTUS, for its part, is not likely to be able to handle the case until 2024, or maybe 2025. That means that Democrats across the country, from Joe Biden on down, are not just going to be running on "abortion access" as a general issue, they'll be able to point specifically to mifepristone access as being in jeopardy if the voters return a Republican Congress and/or a Republican president.

It is true, of course, that even a Democratic president and Congress cannot necessarily stop the Supreme Court from outlawing or severely restricting mifepristone access, should SCOTUS decide they want to play with that particular ball of fire. However, if there is a Republican in the White House from 2025-29, Clarence Thomas will likely retire and be replaced by a far-right fire-breather like Joseph Dawson III, and the seat will be lost to the left for a generation or two. Similarly, if Democrats want to do something in Congress, like expand the Court or impose a mandatory retirement age, they'll need a majority in both chambers plus a Democratic president. So, there's still a pretty clear argument here for voting Democratic if a person favors abortion access. (Z)

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