A federal appeals court judge on Wednesday questioned a lawyer for Danco, the manufacturer of the brand name abortion pill mifepristone, about whether Mother’s Day is “celebrating illness,” during oral arguments over the drug’s approval.
Judge James Ho, an appointee of former President Trump, expressed doubts about the Food and Drug Administration’s (FDA) use of an expedited process to approve mifepristone more than 20 years ago. The accelerated approval process is typically reserved for medications used to treat serious or life-threatening illnesses.
“Pregnancy is not a serious illness,” Ho said, later adding, “When we celebrated Mother’s Day, were we celebrating illness?”
Danco lawyer Jessica Ellsworth rejected this premise, noting that the FDA has used the words “illness,” “condition” and “disease” interchangeably when discussing the rule for expedited approval.
“I agree, your honor, that is the language that is used in the regulation itself,” Ellsworth said. “But as I said, in the preamble and in the discussion of the comments that were submitted in conjunction with that rulemaking, there is discussion about it applying to conditions.”
“It has applied to other things that I think you would not typically think of as a serious illness, like acne and infertility,” she added.
Ho and two other Republican-appointed judges on the 5th Circuit Court of Appeals grilled Ellsworth and lawyers for the Justice Department Wednesday, as they argued for mifepristone to remain on the market.
The case ended up before the appeals court panel after a federal judge in Texas suspended the drug’s approval last month, finding that the FDA had improperly rushed its authorization in 2000.
The Supreme Court has temporarily preserved the status quo, leaving mifepristone available as the case runs its course. The losing party is widely expected to appeal the 5th Circuit’s decision to the high court.