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U.S. Federal Courts

Federal appeals court preserves access to abortion drug

The Court also set tighter rules for accessing mifepristone

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A courtroom for the U.S. 5th Circuit Court of Appeals in the John Minor Wisdom United States Courthouse in New Orleans, Louisiana. (Carol M. Highsmith, photographer, Library of Congress Prints and Photographs Division)

A three judge panel of the 5th U.S. Circuit Court of Appeals issued a ruling Wednesday just before midnight in New Orleans that has preserved access to the abortion drug mifepristone.

In a 2-1 vote the panel blocked the lower court ruling by Judge Matthew Kacsmaryk of the U.S. District Court for the Northern District of Texas for now, but set tighter rules that would allow the drug only to be dispensed up to seven weeks into pregnancy, not 10, and not by mail.

In his ruling in Alliance for Hippocratic Medicine v. FDA, Kacsmaryk had issued a stay on the Food and Drug Administrationā€™s conclusion that mifepristone, which is used in combination with a second drug, misoprostol, is safe and effective, a finding the agency reached in 2000 that has since been buttressed by more than two decades of clinical evidence. Kacsmaryk’s ruling had been on pause for a week to allow the U.S. Justice Department to file the appeal with the 5th Circuit Court.

U.S. Attorney General Merrick Garland immediately ordered the Justice Department to appeal and seek a stay (of Kacsmarykā€™s stay) pending the outcome of additional litigation. On Monday the Department asked the U.S. Court of Appeals for the Fifth Circuit to halt implementation of the ruling.

The Associated Press reported that under the appeals court order, the FDA’s initial approval of mifepristone in 2000 is allowed to remain in effect. But changes made by the FDA since 2016 relaxing the rules for prescribing and dispensing mifepristone would be placed on hold.

Those include extending the period of pregnancy when the drug can be used and also allowing it to be dispensed by mail, without any need to visit a doctor’s office.

The AP also reported that the two 5th Circuit judges who voted to tighten restrictions, Kurt Engelhardt and Andrew Oldham, are both appointees of former President Donald Trump. The third judge, Catharina Haynes, is an appointee of former President George W. Bush.

Haynes said she would have put the lower court ruling on hold entirely temporarily to allow oral arguments in the case.

The decision by the 5th Circuit’s 3 judge panel can still be appealed to the U.S. Supreme Court.

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U.S. Federal Courts

Appeals court hears case challenging Florida’s trans healthcare ban

District court judge concluded the law was discriminatory, unconstitutional

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NCLR Legal Director Shannon Minter (Washington Blade photo by Michael Key)

Parties in Doe v. Ladapo, a case challenging Florida’s ban on healthcare for transgender youth and restrictions on the medical interventions available to trans adults, presented oral arguments on Wednesday before the U.S. Court of Appeals for the 11th Circuit in Atlanta.

The case was appealed by defendants representing the Sunshine State following a decision in June 2024 by Judge Robert Hinkle of the U.S. District Court for the Northern District of Florida, who found “the law and rules unconstitutional and unenforceable on equal protection grounds,” according to a press release from the National Center for Lesbian Rights, which is involved in the litigation on behalf of the plaintiffs.

The district court additionally found the Florida healthcare ban unconstitutional on the grounds that it was “motivated by purposeful discrimination against transgender people,” though the ban and restrictions will remain in effect pending a decision by the appellate court.

Joining NCLR in the lawsuit are attorneys from GLAD Law, the Human Rights Campaign, Southern Legal Counsel, and the law firms Lowenstein Sandler and Jenner and Block.

“As a mother who simply wants to protect and love my child for who she is, I pray that the Eleventh Circuit will affirm the district courtā€™s thoughtful and powerful order, restoring access to critical healthcare for all transgender Floridians,” plaintiff Jane Doe said. “No one should have to go through what my family has experienced.ā€

“As a transgender adult just trying to live my life and care for my family, it is so demeaning that the state of Florida thinks itā€™s their place to dictate my healthcare decisions,” said plaintiff Lucien Hamel.

“Members of the legislature have referred to the high quality healthcare I have received, which has allowed me to live authentically as myself, as ā€˜mutilationā€™ and ā€˜an abominationā€™ and have called the providers of this care ā€˜evil,ā€™” Hamel added. “We hope the appellate court sees these rules and laws for what truly are: cruel.ā€ 

ā€œTransgender adults donā€™t need state officials looking over their shoulders, and families of transgender youth donā€™t need the government dictating how to raise their children,ā€ said Shannon Minter, legal director of NCLR. ā€œThe district court heard the evidence and found that these restrictions are based on bias, not science. The court of appeals should affirm that judgment.ā€ 

Noting Hinkle’s conclusion that the ban and restrictions were “motivated by animus, not science or evidence,” Simone Chris, who leads Southern Legal Counsel’s Transgender Rights Initiative, said, ā€œThe state has loudly and proudly enacted bans on transgender people accessing healthcare, using bathrooms, transgender teachers using their pronouns and titles, and a slough of other actions making it nearly impossible for transgender individuals to live in this state.”

Lowenstein Sandler Partner Thomas Redburn said, ā€œThe defendants have offered nothing on appeal that could serve as a valid basis for overturning that finding” by the district court.

 ā€œNot only does this dangerous law take away parentsā€™ freedom to make responsible medical decisions for their child, it inserts the government into private health care matters that should be between adults and their providers,” said Jennifer Levi, senior director of transgender and queer rights at GLAD Law.

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U.S. Federal Courts

9th Circuit upholds lower court ruling that blocked anti-trans Ariz. law

Statute bans transgender girls from sports teams that correspond with gender identity

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(Bigstock photo)

The 9th U.S. Circuit Court of Appeals on Monday upheld a lower court’s decision that blocked enforcement of an Arizona law banning transgender girls from playing on public schools’ sports team that correspond with their gender identity.

Then-Gov. Doug Ducey, a Republican, in 2022 signed the law.

The Associated Press reported the parents of two trans girls challenged the law in a lawsuit they filed in U.S. District Court in Tucson, Ariz., in April 2023. U.S. District Judge Jennifer Zipps on July 20, 2023, blocked the law.

Arizona Superintendent of Public Instruction Tom Horne, who was named as a defendant in the lawsuit, appealed the ruling to the 9th Circuit. Democratic Attorney General Kris Mayes is not defending the law.

A three-judge panel on the 9th Circuit unanimously upheld Zipps’s ruling.

“We are pleased with the 9th Circuitā€™s ruling today, which held that the Arizona law likely violates the Equal Protection Clause and recognizes that a studentā€™s transgender status is not an accurate proxy for athletic ability and competitive advantage,ā€ said Rachel Berg, a staff attorney for the National Center for Lesbian Rights, in a press release.

NCLR represents the two plaintiffs in the case.

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U.S. Federal Courts

Federal judge: Military can no longer prevent people with HIV from enlistingĀ 

Lambda Legal filed lawsuit on behalf of three servicemembers in 2022

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(Bigstock photo)

A federal judge on Tuesday ruled the Pentagon can no longer prevent people with HIV from enlisting in the military.

Judge Leonie M. Brinkema of the U.S. District Court for the Eastern District of Virginia in Alexandria issued the ruling in a lawsuit that Lambda Legal filed against the Pentagon in 2022.

“Defendants’ policies prohibiting the accession of asymptomatic HIV-positive individuals with undetectable viral loads into the military are irrational, arbitrary, and capricious,” wrote Brinkema. “Even worse, they contribute to the ongoing stigma surrounding HIV-positive individuals while actively hampering the military’s own recruitment goals.”

Brinkema further stated “modern science has transformed the treatment of HIV, and this court has already ruled that asymptomatic HIV-positive service members with undetectable viral loads who maintain treatment are capable of performing all of their military duties, including worldwide deployment.”

“Now, defendants must allow similarly situated civilians seeking accession into the United States military to demonstrate the same and permit their enlistment, appointment, and induction,” added Brinkema.

Brinkema in April 2022 declared the military’s HIV restrictions unconstitutional. 

Nicholas Harrison, a gay D.C. attorney and longtime member of the U.S. Army National Guard who has been living with HIV since 2012, challenged the policy. The Washington Blade reported the April 2022 decision ordered the Pentagon “to discontinue its policy of refusing to deploy and commission as officers members of the military with HIV if they are asymptomatic and otherwise physically capable of serving.”

Harrison became a first lieutenant in the D.C. National Guard on Aug. 5, 2022.

Isaiah Wilkins, one of the three plaintiffs in the lawsuit on which Brinkema ruled on Tuesday, was a member of the Georgia Army National Guard for two years before he left to attend the U.S. Military Academy Preparatory School. NBC News notes Wilkins was “separated” from the USMAPS after he took a medical exam “that revealed for the first time that he was HIV positive.”

ā€œThis is a victory not only for me but for other people living with HIV who want to serve,ā€ said Wilkins in a Lambda Legal press release. ā€œAs Iā€™ve said before, giving up on my dream to serve my country was never an option. I am eager to apply to enlist in the Armyā€Æwithout the threat of a crippling discriminatory policy.ā€ā€Æ 

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