The Fifth Circuit is based in New Orleans and hears appeals from federal trial courts in Louisiana, Mississippi and Texas. But sober legal analysts say it does its most distinctive work in places that are, shall we say, hard to locate on conventional maps.
Some Fifth Circuit rulings are “delivered from Crazy Town,” Irv Gornstein, the executive director of Georgetown’s Supreme Court Institute, said in 2023.
Sarah Isgur, the author of “Last Branch Standing,” a new book on the Supreme Court, said the appeals court was working from the outskirts of a different municipality when it severely limited access last week to a widely used abortion pill.
The court’s central rationale in that case was “Bonkers Town-adjacent” if not “full Bonkers Town,” Isgur, who was a Justice Department official in the first Trump administration, said on Monday on the “Advisory Opinions” podcast.
Lawyers for Louisiana, which persuaded the Fifth Circuit to require the Food and Drug Administration to roll back a regulation that allowed the pills to be prescribed by telemedicine and mailed to patients, welcomed the ruling.
“The Biden F.D.A.’s unlawful authorization of mail-order abortion drugs was meant to nullify state laws that protect life,” said Erin Hawley, a lawyer with Alliance Defending Freedom, a conservative Christian legal group.
The Supreme Court temporarily paused the decision on Monday for a few days — allowing access to the pills to continue for now — and is likely to rule soon on whether to extend that pause indefinitely.
The Most Reversed Appeals Court
The Fifth Circuit, which is dominated by Republican appointees, including six appointed by President Trump, has issued ambitious rulings in recent years that have met a frosty reception at the Supreme Court. Indeed, cleaning up after the Fifth Circuit, which seems determined to outflank the justices to their right, has become a major part of the Supreme Court’s docket.
In the term that ended in June, the justices heard appeals from 13 decisions from the Fifth Circuit and reversed 10 of them. No other circuit had as many appeals granted or as many rulings reversed.
The week before its abortion pills ruling, the Fifth Circuit upheld a Texas law requiring every classroom in the state’s public schools to post a copy of the Ten Commandments. That decision was also widely seen as quite aggressive, as it was in direct conflict with a Supreme Court precedent from 1980 that had struck down an essentially identical Kentucky law.
The majority opinions in both cases were written by Judge Kyle Duncan, who is an emblematic member of the appeals court.
Trump appointed him to the Fifth Circuit in 2018 and put him on a list of potential Supreme Court nominees in 2020.
Before joining the appeals court, Duncan served as Louisiana’s top appellate lawyer and then as general counsel of the Becket Fund for Religious Liberty. Over the years, he defended Louisiana’s ban on same-sex marriage and represented a North Carolina school board that sought to restrict transgender people from using their preferred bathrooms. He also worked on a successful challenge to the requirement that businesses provide contraception coverage under the Affordable Care Act.
Does This Case Sound Familiar?
Judge Duncan’s abortion pill opinion, issued Friday evening, may give the justices a sense of déjà vu.
In 2023, they paused a similar ruling from the Fifth Circuit. The next year, when the case returned to the court for full consideration, they unanimously held that the doctors challenging the F.D.A.’s regulation of mifepristone, one of the drugs used in medication abortions, had not suffered the sort of direct injury that gave them standing to sue. The doctors said they opposed abortion and feared they might have to treat complications from the use of the pill.
In last week’s ruling Judge Duncan said the Supreme Court’s 2024 decision was not binding. Unlike the doctors, he wrote, Louisiana had standing to sue because it had made Medicaid payments on two occasions when women needed treatment for complications caused by the pills.
But that injury, one of the drug’s makers told the justices, is even more attenuated than the one they had rejected from doctors in 2024 because it was one step further removed from the F.D.A.’s actions. “Louisiana cannot establish standing because the doctor later sends an invoice to the state,” the brief said.
Judge Duncan said there was a second reason that the state had standing to sue. He wrote that the F.D.A.’s policy “facilitates nearly 1,000 illegal abortions in Louisiana per month” and so “injures Louisiana by undermining its laws protecting unborn human life.”
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A Need for Speed?
Judge Duncan’s opinion effectively revived an F.D.A. requirement that mifepristone must be prescribed and dispensed in person. The requirement had been suspended in 2021 and formally lifted in January 2023.
Louisiana did not sue until October 2025, after the F.D.A. announced that it was studying whether the requirement should be modified. A federal trial judge said in April that he would wait for the agency to complete a review already underway before ruling. In a separate challenge, Florida and Texas agreed to a seven-month pause to let the agency do it work.
Louisiana took a different approach. It asked the Fifth Circuit on April 17 to block the requirement, and it requested a ruling by May 11.
Judge Duncan and two colleagues, both appointed by Republican presidents, treated Louisiana’s request to address a five-year-old practice as extremely urgent, moving it along even faster than the state had requested. They ruled on May 1, issuing what was effectively a nationwide injunction curtailing access to the pills.
Other Legal News
Mailbag
Anticipating Big Cases
If the court sees a major issue that will likely come their way in the coming weeks, do they prep for it and research it ahead of time? — Michael Smith
The court’s internal processes can seem opaque, but there is every reason to think that the justices, or at least their law clerks and court staff, do not wait for filings to land before getting up to speed in important cases.
I wrote an article in 2012 about Danny Bickell, a staff lawyer at the court who was known as the death clerk. In a presentation to capital defense lawyers, he said he kept a rolling list of executions scheduled for the next six or seven weeks.
“As the date approaches,” Bickell said, referring to impending executions, “I will be in touch with the attorney general’s office. I will be in touch with you, if you are representing the inmate, and with the lower courts, trying to figure out what is pending below and what is likely to make its way up to the Supreme Court.”
About 10 days out, he added, “I will start asking you to forward me everything that you file in the lower courts. Once you forward it to me, I forward it on to the law clerks and to the justices so that they can begin reviewing the case.”
By the time stay requests reached the court, at least back then, the justices were up to speed on the issues.
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What I’m Reading
In a postscript to his new children’s book, “Heroes of 1776,” Justice Neil Gorsuch addressed the first question that came to mind when I learned of this extracurricular project.
“Why did my dear friend” — and former law clerk — “Janie Nitze and I write this book?” he asked. “After all, many other books about the Declaration of Independence exist. What could we possibly add?”
The question lingered after I paged through the $22 book, which is a conventional account of the events surrounding the Declaration, light on text and heavy on illustrations.
The book is part of a trend recently explored by The Washington Post in an article called “Supreme Court Justices Turn Children’s Books Into Big Paydays.” Justice Sonia Sotomayor alone has published five books for younger audiences.
I did appreciate a candid introductory note in the book by Justice Gorsuch, who is an originalist committed to to unearthing the original meaning of the Constitution. In writing about the past, the note said, “separating myth from fact can be no small task.”
“What we can say is the stories we relate here are very old and have become part of the fabric of our nation’s history,” the note said. “It is in that spirit that we share them.”
