The Court That Got It Wrong: Louisiana V. Food And Drug Administration With Richard Wilson

What makes Podcast 178 uniquely powerful is the extraordinary combination of expertise brought by Richard Wilson and Dr. Jackalyn Rainosek.

Richard Wilson is not simply offering political opinions about a controversial case. He is an accomplished trial and appellate attorney with decades of experience handling complex litigation in both state and federal courts, including appeals before the Fifth Circuit itself. Over the course of his legal career, he has served as lead counsel in numerous appeals, tried major cases involving professional liability, insurance disputes, breach of contract claims, and The constitutional issues, and successfully argued cases before appellate courts and the Texas Supreme Court. His professional credentials speak for themselves.

Wilson earned his law degree from the University of Texas at Austin and has spent decades practicing law at the highest levels of civil litigation. He is AV Rated by Martindale-Hubbell, one of the legal profession’s highest peer-review distinctions, and has authored legal publications cited by courts, including the Texas Supreme Court. His published appellate work and extensive courtroom experience give him a deep understanding not only of what courts say, but how judicial reasoning should properly function under constitutional and administrative law principles. That experience becomes critically important in Louisiana v. FDA.

Throughout this podcast, Wilson methodically breaks down the Fifth Circuit’s reasoning and explains why many of the court’s conclusions raise serious legal concerns. He examines issues involving standing, administrative law, federal regulatory authority, judicial review, and the limits of appellate power. More importantly, he explains these complex legal doctrines in language ordinary listeners can understand.

What listeners will hear is not partisan outrage. They will hear disciplined legal analysis grounded in decades of courtroom experience.

Wilson carefully explains why courts are supposed to defer to scientific agencies like the FDA when evaluating highly technical medical matters unless there is clear evidence of arbitrary or unlawful conduct. Yet in this case, the Fifth Circuit stepped into an ongoing scientific review process and imposed sweeping legal conclusions despite acknowledging that the FDA itself was still gathering data and continuing its review.

The podcast examines why this matters not only for reproductive rights, but for the integrity of the legal system itself.

At the same time, Dr. Jackalyn Rainosek brings something equally essential to the discussion: nearly 48 years of experience working directly with people whose lives are shaped by the kinds of decisions courts too often discuss only in abstract legal language.

As a mental health professional and coach, Dr. Rainosek has spent decades helping individuals and families navigate trauma, financial crisis, emotional distress, family instability, abuse, depression, anxiety, and impossible life decisions. Her contribution to this discussion is not theoretical. It is rooted in nearly half a century of firsthand understanding of the social and emotional realities many women face.

Together, Wilson and Rainosek examine what this case means both legally and humanly. They discuss the realities facing women who:

cannot afford another child,
lack healthcare access,
are already struggling financially,
face domestic instability,
work low-wage jobs without flexibility,
have no childcare,
or simply do not possess the economic privilege assumed by many political leaders and judges.

The discussion also addresses the broader societal consequences that rarely appear in judicial opinions:

rising poverty,
overwhelmed foster care systems,
emotional trauma,
mental health consequences,
family instability,
and the long-term impact on children born into situations where families lack sufficient support.

Importantly, the podcast does not reduce these issues to slogans or political talking points.

Instead, listeners hear a serious and thoughtful conversation about law, human behavior, healthcare policy, constitutional limits, and the social realities that courts often fail to acknowledge. Wilson and Rainosek approach the issue from different professional backgrounds, but together they paint a compelling picture of why Louisiana v. FDA matters far beyond one state or one lawsuit.

This is not simply a discussion about abortion medication. It is a discussion about whether courts should override science with ideology. It is about whether legal systems should ignore economic reality. It is about whether women’s lives and circumstances are being honestly understood by those making decisions that profoundly affect them.

The Fifth Circuit may have issued the ruling. But this podcast asks the deeper question: Did the court truly understand the human consequences of its decision?

After listening to Richard Wilson’s legal analysis and Dr. Jackalyn Rainosek’s decades of clinical and social insight, many listeners may conclude that the answer is no.

Episode Summary Points:

Case Overview: The discussion focuses on Louisiana v. Food and Drug Administration, a case challenging a 2023 FDA decision that permitted the prescription and mail-order dispensing of Mifepristone.
Current Legal Status: The case involves a request for a temporary injunction to stop mail-order prescriptions. While the Fifth Circuit initially sought to grant a nationwide injunction, the US Supreme Court issued orders preventing that ruling from taking effect, allowing mail-order prescriptions to continue for now.
Arguments on Standing: Louisiana claims standing, arguing it faces costs for Medicaid treatments due to complications from Mifepristone. The conversation notes that this justification relies on limited data ($92,000 for two cases) and fails to account for the broader societal and economic impacts of abortion restrictions, such as the potential burden on foster care systems.
Judicial Overreach Concerns: There is significant criticism regarding the Fifth Circuit’s tendency to second-guess the FDA’s scientific and medical determinations without the necessary expertise. The discussion highlights that the court is substituting its own judgment for that of scientists and physicians who designed and evaluated the drug protocols.
Procedural Flaws: The discussion notes that the Fifth Circuit relied on the Alliance for Hippocratic Medicine case, which the Supreme Court had already reversed. Furthermore, the court is criticized for granting a nationwide injunction that affects states where abortion remains legal, potentially violating established principles of limiting relief to the parties involved.
Broader Implications: The discussion emphasizes that this case is part of a larger, ongoing effort by conservative-leaning courts to restrict access to abortion. It underscores the importance of public awareness regarding judicial activities, as these decisions have profound real-world consequences for women’s healthcare and bodily autonomy.

References for Podcast 178:

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The Court That Got It Wrong: Louisiana V. Food And Drug Administration With Richard Wilson

I’m so glad to have my friend and colleague Richard Wilson with me. All of you know that he is a great lawyer. He always helps me and you to understand cases that are coming before the Fifth Circuit, a district court, or the Supreme Court. Richard, would you do me a favor and summarize this case? I then have a bunch of questions for you.

Case Background And The FDA’s 2023 Mail-Order Decision

Sure. The case we’re discussing is Louisiana versus the Food and Drug Administration. The other parties participating in this case are Danco Labs and GenBioPro, which are the pharmaceutical companies that are involved. This case concerns a decision by the Food and Drug Administration in 2023, I believe, to permit the prescription of Mifepristone, which is one of the drugs used to induce a medical abortion through mail-order pharmacies as opposed to requiring women to go and visit a doctor in person.

The state of Louisiana filed suit in the Louisiana federal court, trying to undo that 2023 decision by the FDA, arguing that the FDA never should have approved Mifepristone for being approved and being filled by prescription through mail order. The state of Louisiana claimed that the FDA had not followed the proper procedures in that approval process. They were arguing that the stake or basis for seeking the reversal of the FDA’s approval process for mail-order prescribing of Mifepristone.

It was that up to 1,000 women a month in the state of Louisiana, where abortion is illegal, were being prescribed the drug, were receiving the drug in Louisiana, and were taking the drug to induce abortions in violation of Louisiana law. Here’s an important distinction that I think needs to be made. At this point, the lawsuit has not been tried yet. We’ve talked about this previously with the Trump v. National Guard case out of Illinois. What this opinion we’re talking about involved was the decision by the district court in Louisiana to deny a temporary injunction, prohibiting the mail-order prescribing of Mifepristone.

The Fifth Circuit was considering the decision by the district judge to deny the injunction. We’ll get to your questions, but the opinion we’re going to be focusing on said that the district court judge got it wrong. The Fifth Circuit was going to grant the state an injunction that would have been nationwide, not just limited to Louisiana, prohibiting mail-order prescriptions of Mifepristone. However, before the Fifth Circuit’s ruling went into effect, the US Supreme Court, through the course of three different orders, kept the Fifth Circuit’s ruling from going into effect.

You can still be prescribed Mifepristone by mail because the US Supreme Court has said that the Fifth Circuit’s decision can’t go into effect. That’s where we are. There are so many things about this case from a legal standpoint that I think need to be confronted and discussed. Among those is, from a legal standpoint, why was Louisiana doing this to begin with? I understand the practical and legal standpoint if the decision by the FDA in 2023 were out there, and the FDA has made it clear that, “We’re going to stand by this prior ruling and decision we’ve made.”

The reality is that once Trump got elected to the White House and once Kennedy took over health and human services, the FDA began its own process of reconsidering its 2023 decision. We’re in a situation where any day, the FDA could say, “From an administrative standpoint, we’ve reviewed our decision-making process. We believe we made a mistake, and we are setting aside our 2023 decision to allow the prescribing of Mifepristone by mail order.” One of the things that gets to me initially is why are we letting the courts interfere with a decision-making process that is already being undertaken by an executive department?

[bctt tweet=”We’re in a situation where, at any time, the FDA could say, ‘After reviewing our decision-making process, we’ve concluded that our 2023 decision was a mistake, and we’re rescinding our approval of prescribing Mifepristone by mail.'” via=”no”]

There’s another thing, too. There is no way that I would have Kennedy and the group of people he’s put into effect to make a decision about medical drugs and so forth, because he has no degree and no knowledge base. He is a conspiracy theorist, and he does not have the background to make these kinds of decisions. That concerns me.

The thing that bothers me about this case is that it is coming up because of Dobbs v. Jackson Women’s Health Organization. When there was the reversal of Roe v. Wade, all of a sudden, women nationwide thought that they had no way to take care of their own bodies and their own health and make their own decisions.

Dobbs sent through a serious problem. The thing that bothers me about this case is that Dobbs shifted the responsibility of deciding whether a woman has the right to take care of her own body when Dobbs gave the states the right to decide what’s going to happen in their state. That, to me, is very concerning because I know the factual data out of the fact that there are many more women dying of complicated issues because they don’t have the availability to have an abortion. That bothers me. There is factual data I’ve given in another episode of mine to show exactly what is happening nationwide.

Let’s go because you have all the legal issues that you want to cover. I want you to start wherever you want. If you can do me a favor and tell me which page we’re on in the document. If you can do that, then it’ll help me because I can keep up with you and then ask other questions as we go through it. The thing that is most important is on page two.

In 2025, Louisiana challenged a new regulation. They justified it because of the fact that they had to pay a lot of Medicaid bills for women harmed by Mifepristone, and yet we only have three cases they’re talking about. I’m going to leave that and let you go anywhere you want, and then I’m going to start asking questions. I may say, “Richard, I want to rub down and ask you a question.” Please go forth, though, and go wherever you want to go next for the legal aspects.

Louisiana’s Legal Challenge And The Argument For Standing

I’ll start with the point you’re making. It’s on page two. Framing the case, the Fifth Circuit says that in 2025 Louisiana challenged the new regulation in federal court under the Administrative Procedure Act. It argued that FDA’s justifications for remotely dispensing Mifepristone were based on flawed or non-existent data. That’s the starting point.

What we have here is a state in Louisiana that said the decision the FDA made in 2023 to allow drugs, Mifepristone specifically, to be dispensed online or through the mail or prescribed online and dispensed through the mail was an improper decision. They were challenging that decision. What Louisiana is doing is looking to set aside that FDA ruling or decision from 2023 so that we’ll go back to the way things were prior to that ruling. By that, I mean a woman who is seeking a prescription for Mifepristone would have to make an appointment with a doctor, go in, see the doctor in person, and have the doctor prescribe the drug for them in person.

Louisiana’s argument was, “We’ve got women in Louisiana.” Their estimate was 1,000 a month. They said, “They are going online, getting doctors in other states to prescribe Mifepristone to them, and then receiving the drug through mail-order pharmacies in Louisiana. They’re taking the drug and violating the law in Louisiana. We need to stop that since the ability to control abortion has been returned to us as a state of Louisiana.”

I want to go into something because we have discussed this. What I know is that if they’re on Medicaid, they’re not women who can afford to travel somewhere else to get an abortion. They’re not able to do that sometimes because of things that are happening in their family structure. I have several cases I’ve worked with as a therapist years ago. There were some of these women who had 5 or 6 kids because that’s what was demanded by their husbands. As they became better educated, they realized that they were being used by their husbands by controlling them. They had no choices, and they didn’t understand they had choices.

There are social issues here that are important to look at. Besides that, a lot of these women may, as you described earlier to me, feel shame, concern, or whatever, or they’re trying to protect themselves from having another baby that they can’t afford. To me, one of the major issues I see in states like this is that they never provide extra care for children. They do things that prevent women who know they can’t afford another baby from having that kind of decision.

I know you’re originally from Louisiana. I want you to talk about what they do in Louisiana that I think is a criminal act in other states. I want you to talk about the safe process that they “have” in Louisiana. It’s amazing to me. They want to have more children, but they don’t want to take care of them. Would you please talk about the legal issues around that?

I will talk about that. First off, because you touched upon something in the course of getting there that I find troubling as a foundation to the Fifth Circuit’s opinion. The Fifth Circuit assumes that the 2023 decision by the FDA to allow Mifepristone to be prescribed online was explicitly for the purpose of allowing women to circumvent the laws of states like Louisiana and Texas, where abortion is illegal.

They take it as an assumption without any analysis. That troubles me because the executive order of the Fifth Circuit on the very first page of the opinion reads that the Biden administration directed federal agencies to expand access to medication abortion. Expanding access doesn’t mean allowing women to illegally obtain abortion in states where it is not permitted. For me, that touches upon other things.

Legally, the assumption we operate under is that if an agency takes an action, the action the agency is taking is presumed to be lawful. The government doesn’t exist to find ways to break its very own laws or the laws of the states under it. Expanding access to medication abortion may simply mean allowing women who cannot afford a day off from work to go see an obstetrician about the need for an abortion.

Allowing them to do that online allows them to do that after work. It allows them to do that without missing a day of work and missing the money they would be making from that day of work. That expands access to medication abortion, even in states like California and New York, where it is legal and doesn’t run afoul of the law.

The other issue is one that you touched upon in your explanation, where perhaps the woman wants to do this, but does not want her spouse or significant other to know about it. Allowing for this online and mail-order process makes it easier for the woman to conceal her legal actions from a significant other who might not agree with her decision about her body. I find that the foundation for the Fifth Circuit’s opinion, the assumption that this executive order and the subsequent decision by the FDA were simply done to allow women to violate the law in states like Louisiana, to be false. That bothers me.

There are arguments about standing. In touching on this, I’m going to raise something else that you didn’t bring up before I finally get to answer your question. Throughout the Fifth Circuit’s decision, they cite and rely upon their prior decision in Alliance for Hippocratic Medicine versus the Food and Drug Administration. The problem with them relying on that prior decision or that court relying on that prior decision is that it was reversed by the United States Supreme Court in 2024. That was a case that came out of Amarillo. A district court judge in Amarillo decided that the decision of the FDA to approve Mifepristone initially in the year 2000 was improper and should never have happened.

In that case, the US Supreme Court reversed it and said, “We’re not going to do that. We’re not going to allow you to do that.” The reason they did it was that they didn’t go through the analysis of abortion and abortion rights. They simply found that the plaintiff, the Alliance for Hippocratic Medicine, lacked standing. They didn’t have a dog in the fight, which is something we’ve discussed previously. That argument was being made with regard to Louisiana in this case as well.

The drug companies, which intervened, came into the case after Louisiana sued the FDA. The point they made is, “You’re trying to make decisions about a medication that we manufacture. The person that will be economically affected by your decision is me, the pharmaceutical company, so I need to be involved.” That was permitted. What the drug companies were saying is, “Wait a second. Louisiana doesn’t have standing either.” Louisiana’s argument for standing was twofold. We’ll move right to the second part because that’s what you’re referring to.

Louisiana said, “We’ve had to pay money through our Medicaid program to treat women who have had adverse side effects after taking this drug. Since this happened in 2023, we have paid $92,000 in Medicaid costs for 2 women who needed emergency care due to complications after taking the drug.” You’ve got two cases and $92,000 total. A point I would make about the cost Louisiana is paying is, from a holistic standpoint, is it costing Louisiana any money? What I mean by that is you’ve referred to the Louisiana safe harbor provision.

Fifth Circuit Reliance On Reversed Precedents Like Alliance For Hippocratic Medicine

Some states have these provisions. If you have a child and you do not want the child, there is a safe harbor or a window where you can go to a police station or a fire department, and you can surrender the child, and that is not child abuse or child neglect. The emergency department to which you surrender the child will take the child into custody and put them into the state’s foster care system. Louisiana had isolated $92,000 in Medicaid costs based upon the treatment of two women who needed emergency care.

[bctt tweet=”Many states have safe-harbor provisions. If someone has a newborn they are unable or unwilling to care for, they can legally surrender the child at designated locations, such as a fire station or police department, without facing charges of child abuse or neglect.” via=”no”]

My question to you, and my question to the court in whole and to the state of Louisiana is what is the estimate of money you are saving? You don’t have to increase your foster care system to care for up to 12,000 unwanted children who were born in your state each year. Mothers surrender those children to police departments and fire departments around the state because they didn’t want them. They can’t afford them, or whatever their excuse may be.

I know that if there are an additional 12,000 kids a year going into the foster care system when they’re only a month old, then that is going to be an additional cost of the foster care system in Louisiana. No one has bothered to point out, what is the quantification? What is the value of that additional cost that Louisiana has taken on in relation to the $92,000 in Medicaid costs it paid for the treatment of two women who had complications out of taking Mifepristone?

The other thing is with regards to the two women Louisiana focuses on, who’s to say that those women didn’t take a flight to Kansas City, and then drive to Overland Park? Legally be prescribed and take the drug in a state where abortion is permitted. There’s nowhere in this decision where they’re able to quantify that those two women who received that emergency care actually took the drug in Louisiana in a manner where they were violating Louisiana law. Even that they took the drug after receiving it by mail order. None of that is taken into account by the court as well. The dots are not connected. The court, in my opinion, wanted to make this decision and ultimately cherry-picked whatever it could find to make the decision.

This is one of the biggest problems I have with the case. Let me back up a little bit. I touched on it already, but I’m going to remind our readers. This involved temporary relief. The underlying case is still pending. It hasn’t been tried yet. What we are dealing with is an attempt to put in place a temporary injunction. When you have temporary relief being granted without a full trial on the merits, the standard of review that an appellate court is supposed to follow is not whether we would decide the case differently.

The standard of review is to look at the decisions the district court judge made and determine whether there was any legitimate basis. Was there any legal basis or any rational basis for the district court’s decision? If there is any such basis, then the determination is supposed to be, “The district court did not abuse its discretion, so we’re going to leave its ruling in effect.”

What you have is you have different burdens of proof. Beyond a reasonable doubt on the civil side, you’ve got preponderance of the evidence, but then you’ve got abuse of discretion. This is a much higher burden that Louisiana must clear in order to set aside the decision of the district court. The reason appellate courts will put these higher burdens in place is because of the types of things I’m talking about.

The judge at the district court level is the judge who’s going to hear the evidence. It is the judge who will make decisions concerning whether or not they believe a witness’ testimony was truthful or whether or not the witness’ testimony was directly in response to questions being asked. They make decisions about the credibility of the witnesses, so their decisions need to be respected in that regard.

There’s no discussion by the Fifth Circuit about the burden of proof it’s supposed to undertake. What we have here is a circumstance where it seems to me that this panel of the Fifth Circuit wanted to put a nationwide injunction into effect to prohibit the mail-order prescription of Mifepristone. They were cherry-picking things to allow them to do that rather than weighing all of the evidence, which was what the district court did initially.

We both know that the Fifth Circuit is the most conservative court in our nation. It’s ridiculous what comes out of it. Many times, their decisions are reversed or whatever else.

My understanding based upon some of the statistics I have seen, is that even with what everyone perceives to be a conservative US Supreme Court, 6-3 conservative versus liberal. The Fifth Circuit is still the most reversed circuit court of appeals in the country.

Thank you. I’m glad you’re saying that because it is horrifying for me that we, in Texas, have to deal with them and constantly have to work through the process. The thing that bothers me so much is that Louisiana has this ban on abortion. Louisiana brings this case to try to get a test of whether they can get a national ban or not.

I’ve read many articles about the statements that Trump doesn’t want a national ban. He keeps saying that. That’s what he did six weeks before he was elected, so he could get elected. I’m not sure what he would say now because we never know what he’s going to say or whether it’s truthful. The thing is, though, Louisiana is trying to build a case. I’m questioning the reason Louisiana is doing this because $92,000 for two women for emergency care is minute compared to what they would have to resolve and how much they’d have to spend on their foster care.

The other thing, too, is that as a PhD. I know what it’s like for children to be turned over to somebody they don’t even know when they’re a month or a few days old or whatever. They’re put in the foster system. I don’t know of anyone in this nation who can say our foster system is wonderful, and it helps kids move and become more successful as they go through the foster care system.

To me, there are other issues that are beyond the legal. I don’t want to go into them too much, but I want to name this. What you’re saying is, to me, the Fifth Circuit did not consider a lot of the issues that have gone on, and the district courts were considering many issues. What else do you see as far as the legal issues? There are two Supreme Court justices about whom you can talk about what their dissent would be like on some of the things they’ve done before.

There are a lot of issues with what we say about the legal process. I certainly do not think it’s acceptable that Louisiana, which has a very conservative attitude toward abortion, has the right to tell California in a national ban, because it has happened, what they can do. California does not make that same decision. They support abortion.

The Conflict Of Nationwide Injunctions And Trump V. Casa

That is another problem with this case. On the final page of the opinion, the Fifth Circuit says, “It is true as the district court noted that a stay would, as a practical matter, have a nationwide effect. We do not agree, however, that this result is somehow in tension with Trump v. CASA.” Trump v. CASA is a case from 2025.

What that case concerned was that it involved the immigration practices of our current executive branch. A court in the Northeast granted a nationwide injunction prohibiting ICE from undertaking certain deportation proceedings. In Trump v. CASA, what the US Supreme Court said is, “We’re not going to allow injunctive relief that extends beyond the parties to the litigation.”

The problem I have with this is that the FDA is a party to the lawsuit brought by the state of Louisiana, but the effect of the stay would have been a nationwide injunction. It would have been an injunction that prohibits online prescriptions and mail-order prescriptions in the state of California, or in the state of New York, or in other states where abortion is illegal. It would be interfering with the rights and laws of those states that permit women to obtain abortions legally.

[bctt tweet=”The FDA is a party to the Louisiana lawsuit, but the stay would have operated as a nationwide injunction, blocking online and mail-order prescriptions in states like California and New York, and interfering with states where abortion is legal under state law.” via=”no”]

It troubles me that in simply one sentence, the Fifth Circuit says, “We don’t see our decision as being in tension with a case which made it clear that courts should not grant injunctions that go beyond the parties to the case.” In this case, when you’re dealing with it on a temporary basis and there hasn’t been a final decision on the merits.

The effective manner of applying Trump v. CASA and its limitations would have been to say, “We’re granting a stay as to the state of Louisiana. Online doctor visits for the purpose of receiving a prescription for Mifepristone and mailing the drugs to people who reside in Louisiana will not be permitted.” The Fifth Circuit went beyond that and, without any real explanation, said, “We don’t see a problem with it.”

Maybe I view the world through a much more simplistic lens, but when the US Supreme Court says the injunctions have to be limited to the parties to the lawsuit. I do see a problem with granting an injunction that would interfere with the rights of women and states outside of Louisiana. It’s eighteen pages, but this case is rife with legal mistakes.

Another example, and you haven’t asked about it, is on page eight of the opinion, there’s an argument being made. The Fifth Circuit is citing as controlling authority the Alliance for Hippocratic Medicine cases, which have been reversed by the US Supreme Court. They’re considering an argument made by one of the drug companies that Louisiana has to administratively exhaust its claims.

What the drug company was arguing is, “The FDA is already reconsidering this 2023 decision to allow online prescriptions and mail-order drugs with regard to Mifepristone.” The proper way to go about this is not to go to a district court. It is to present your arguments to the FDA so that the FDA can make a reasoned decision through its own review process that is in effect now.”

What the court says is that Danco gives us no reason to think that the FDA would administratively stay the 2023 decision, which formalized mail-order prescriptions of Mifepristone. It’s not Danco’s obligation to meet this burden of proof. If the state of Louisiana wants the stay, the state of Louisiana has the burden of proof in seeking injunctive relief to show that the FDA is not going to administratively stay things through its own decision-making process.

This is why we, the state of Louisiana, have to come to court. This is why we’re in court. The burden of proof doesn’t belong to Danco. It belongs to the state of Louisiana. In its decision, the Fifth Circuit has put the burden of proof on the intervening party, the drug company, which is a party that does not have the burden of proof. There is another point in the case. The opinion reads, “We have now three times found that the agency’s progressive relaxation of Mifepristone’s guardrails likely lacked a basis in data and scientific literature.”

My response to that would be, “Really?” The Food and Drug Administration, with the exception of your comments about Robert Kennedy Jr. earlier, has a process in which physicians and people who have designed these drugs present medical studies on the propriety and safety of these drugs. These decisions are made by people with background knowledge that is related to the decision-making process going on.

They’re people who understand and can make medical and scientific determinations about the safety of these drugs. Whether or not a drug should be prescribed or must be prescribed in person or can be a mail-order drug you can get in your pharmacy down the street without a prescription. These decisions are made by people who know what they’re doing.

The problem I have with courts continuing to wade into these decisions is that the Fifth Circuit is talking about it like they’re God. Three times, we have found that they lacked a basis in data and scientific literature. It troubles me that the decision is being made by a court and a judge with a history or a Political Science degree from Louisiana State University. Not an actual licensed physician or a biochemist who designed the drug.

Judicial Second-Guessing Of Scientific And Medical Expertise

We’re not talking about PhDs in Biochemistry making these legal decisions. A lot of these judges, some of them very well may have had degrees in Biochemistry, but I can tell you from practicing law that quite a few of them have got degrees in History, English, Political Science, or Psychology. They are not equipped to make these decisions from a scientific standpoint, which is what the Fifth Circuit is talking about. It’s not the legal standpoint, the legal decision-making process, or the legal burdens that must be cleared, but the scientific data and scientific literature.

We’ve touched upon this. You and I have private discussions. I may have mentioned it in one of these prior discussions with you online about the whole Chevron decision-making process and trusting people who know what they’re talking about to make these decisions. It troubles me when we’ve got judges second-guessing the scientific analysis that goes into a decision to allow a drug to be prescribed online. Much less doing so three times, as the Fifth Circuit wants to make it clear that they’ve done.

What you’re bringing up is a point that’s well taken. I don’t see how legislative individuals who have no medical background can make the decisions they’re making about the rights of women to decide what’s going to happen with their bodies. Not only that, I find it very difficult to find that here sit these judges who think they can talk about a drug that they have no clear knowledge of.

They don’t have any data in front of it to show what is the possibility. I look forward to them trying the case because I am certain that these pharmaceutical companies are going to show them all kinds of data that will show very clearly that the district court made a better decision than the Fifth Circuit ever even thought about.

The reason I appreciate you bringing this case to our attention and us talking about it is that you have specifically simplified but also brought to my attention, as well as our readers, that you’ve got to start paying attention to what’s going on in the courts. That’s the reason you and I are doing this every month. If you don’t pay attention, things are going to change, and you’re not going to like them.

The other thing I want to mention at this point is something I remembered. Let’s take this. The court decides that Louisiana alone is the only one that will be affected because they have a law that bans abortions. What if the FDA decides to put a requirement that no woman can have this drug unless they see a doctor who approves of it and then supervises the process for the woman?

You take Louisiana. Who in the world is a doctor in Louisiana who’s going to be willing to agree to give this drug because it’s considered a criminal act? We are putting medical personnel in a position where they can’t do the kind of treatment that they think is best for their patient. They are being told they’re criminals if they use this drug, but in another state, a doctor there can use it.

With the legislative representatives and the judges thinking they have the right to make these decisions with no medical and scientific background. I know, it is because the moment Trump came in, the scientific community was considered to be questionable and was not trustworthy. Yet, our scientific community has been exceptional in the way it’s contributed worldwide to many things that have happened.

It concerns me that judges have become so arrogant and egocentric in the Fifth Circuit that they cannot remember they’re human beings. You call it something else, but they cannot remember they’re human beings who do not have the educational background to make this decision. I’m supporting what you’ve said before, but I appreciate you giving me the chance to voice that.

The Fifth Circuit, in overruling or overturning the decision by the district court not to grant Louisiana the injunctive relief or the stay. One of the things they mentioned is that the district court emphasized the importance of the FDA being able to complete a fulsome review and proper science-driven evaluation of its Mifepristone protocols.

The court says quite true. However, this challenge, the one by Louisiana, involves the existing 2023 REMS, not the FDA’s ongoing review. Granting a stay would do nothing to prevent the FDA from completing its review of Mifepristone safety protocols. I read this sentence, and it’s like something out of a cartoon or a Mel Brooks movie.

The Arrogance Of The Fifth Circuit Regarding Ongoing FDA Reviews

With the FDA’s ongoing review of its initial 2023 decision to allow online prescriptions for Mifepristone, how is it that review does not affect its 2023 decision? It’s a level of arrogance by the court. What the court is doing is saying the decision of the agency to review its prior policy has no relation to the prior policy decision.

[bctt tweet=”The court’s position suggests that an agency’s reconsideration of its own policy has no bearing on the validity of that policy.” via=”no”]

It’s an amazing level of arrogance for the court to substitute, under the guise of legal rulings. Its judgment for the judgment of the scientific community and those within the FDA that are already looking at the 2023 decision to determine whether the data behind this decision was enough that it would be prudent to allow this drug to be prescribed online.

The truth of it is that an evaluation like that at this point in time, and we’re in May of 2026, is going to involve over two years of data. They’ll be able to look and see, “What have been the potential negative side effects or complications of allowing this? What are the positive side effects and complications?” Every drug has the occasional side effect for some people, but that doesn’t make the drug on a wholesale level unsafe.

If the FDA is reconsidering its prior ruling, the decision of the Fifth Circuit to say, “The FDA can go back and reverse itself if it wants to, but we’re going to go ahead and stop the effect of its 2023 decision while it does this,” is not legal reasoning. That is arrogance. It’s arrogance by people who, given their positions, ought to know better because there’s no legal basis for it.

When a court makes a decision, if it’s going to draw a conclusion, typically, it will cite existing case law precedent to show, “This is why we’re doing it. This is what other courts have done. This is why we agree with those courts.” Here, there is no case law. There is no authority. There is nothing for the court to cite to support its decision to get out over its skis and try, as it points out in its own opinion, for a third time to second-guess the FDA as to this one particular drug.

You can talk about the practical complications. Many decisions by the Supreme Court avoid the substance of rulings for things like standing. I will agree with you that the reason we have this case is that, with the Alliance for Hippocratic Medicine decision, which I consider to be a seriously flawed decision. They were talking about over twenty years of data concerning the prescribing of Mifepristone for abortions.

One federal court judge in Amarillo was handpicked by a plaintiff who was created to try to overturn the approval of Mifepristone as a drug that could be prescribed in the United States, making that decision despite the twenty years of data since Mifepristone was approved. It troubles me that this is happening. The reason it’s happening is that I feel while the Supreme Court said, “There’s a standing issue. Ultimately, we’re not going to consider the merits of the case.” The Supreme Court had gone ahead and said, “Regardless of standing, here’s why this case falls on the merits as well.”

Think of it using the metaphor or the analogy of a stool with three legs. The court knocked out one leg on the standing issue with the Alliance for Hippocratic Medicine case. Since it didn’t knock out a second leg and say, “The court’s decision-making process with regard to the approval of Mifepristone as a drug that can be prescribed in the United States was also flawed.” It is allowing other courts and other plaintiffs to come forward and still try to knock out this drug.

They try to knock out this drug so that it is not available to women, despite the two decades of data showing that the complications that will occasionally arise from someone who takes Mifepristone are far less than the complications that arise from many other drugs that are on the market and are regularly used by humans every day. Those are drugs like Viagra for men or insulin for diabetics. There are numerous other drugs that no one denies the safety and effectiveness of but, nonetheless, have the occasional side effects that are far greater than those we see with Mifepristone. The data is out there, and that is being ignored. It’s not being acknowledged by the Fifth Circuit.

I have a friend who lives close to Amarillo. Her comments about the legal aspects and all the things that they were talking about in that community were that they all knew it was a group of people who opposed abortion. They decided to create a client, which was a false client, that was put before a highly conservative judge because they knew that they could get something done.

My sadness is that it seems the Fifth Circuit will take anything to support an extremely conservative position that is not supported by American citizens. Seventy-two percent of Americans believe that abortion should be legal. That is documented over and over again. I have plenty of documents to base that on. I want to do something, though. I don’t want to lose something that you brought to my attention. You gave me the dissent in a case where Alito and Thomas both dissented. Could you please comment on that? I think it has relevance to what we’re talking about.

Supreme Court Emergency Relief And The Alito-Thomas Dissent

I’ll touch on this. This is a good place for us to stop, too. After the Fifth Circuit made its decision, we’ve talked about the shadow docket before in the US Supreme Court. The drug companies, Danco and GenBioPro, filed applications for emergency relief with the US Supreme Court, looking to try to block the stay that the Fifth Circuit was putting in place.

The requests for emergency relief, as I understand it, from the Fifth Circuit, go to Alito, and then Alito will refer them to the court. Alito initially granted relief to the drug companies and kept the Fifth Circuit’s ruling from going into effect. He only did so for a couple of days to allow briefing on the merits. Whereas with other cases that have come before him that involve what would generally be characterized as conservative principles and parties.

Alito has no problem with granting a stay until there’s been a decision on the merits by the district court. Here, he only did it for a couple of days. When that deadline came, the court extended the stay for a few more days. Ultimately, the court put a stay in place without a termination date that keeps the Fifth Circuit’s ruling from going into effect. When it did so, Justices Alito and Thomas dissented from the granting of the stay. They wanted to allow the Fifth Circuit’s decision to go into effect.

Thomas says that doing this allows the drug companies to break the law. I would point out that it’s not the drug companies that are breaking the law. To me, if we want to call it breaking the law, it would be the women who are seeking out the drugs who happen to reside in Louisiana. The law they’re allegedly breaking is the federal Comstock Act, which prohibits the use of the US mail to ship any drug that allows one to produce an abortion. I would point out that the Comstock Act in that regard has never been enforced anywhere in the country.

Before Dobbs came down a few years ago, we had Roe v. Wade legalizing abortion. The net effect of that would be to prevent the Comstock Act’s application for this process. Alito then dissented saying that what this is allowing is for these women to get the drugs, and that Louisiana has a right to prevent this from happening. Alito is arguing that perhaps the stay should have been allowed to go into place. Perhaps the injunction should have been granted. He says, “I would deny the applications because, as things now stand, the manufacturers have failed to show that they face an irreparable injury without which this court may not grant the stay.”

If I am unable to send a drug by mail to a woman in California who has gone online and gotten a prescription for Mifepristone, as the Fifth Circuit said, “A dollar amount, no matter how small, is significant enough to confer standing.” If I’m unable to fill that prescription and I’m losing whatever the amount might be, whether it be $1, $100, or $1,000. That’s an irreparable injury to me as the drug company.

It’s not like a year from now, I can go back and send the drug to the woman so that she can get her abortion. If her 38 weeks have gone by, she has a child. I disagree with Alito’s decision-making process as well. I will point out that the majority of the court said, “We’re not going to grant a nationwide injunction and prohibit the prescribing of these drugs online and the filling of these drugs by mail.”

Thank you.

I found the analysis and basis for the decisions by Alito and Thomas to be flawed as well.

I think of all the discussions we’ve had. Alito, when he was much younger, made very different decisions from what he’s doing now. It is sad to watch that we have two people on the Supreme Court who have already done so many things that are questionable ethically and otherwise. Here’s what I would like to say.

One of the things that I value about our discussion so much is that I’m not the lawyer. Every time that I read the cases that you send to me, and then we have discussions, so I can participate in these monthly meetings with you. I’ve learned a significant amount of what is going on in the courts. I am paying a lot more attention. I know that I read things and include in my other episodes things from various courts because I think the courts are the one place that we have some kind of saving grace.

I think of the fact that Alabama and its gerrymandering map have been, in a district court, declared unconstitutional because it is an obvious discrimination against African Americans and their communities. We’ll see what the Supreme Court does because they seem to have reversed anything like that. It’s also very interesting that we have Virginia, where the people of Virginia voted not to have gerrymandering, and yet the Supreme Court supported it.

To me, living in America, my understanding was that the citizens of the United States made the decisions. They decided on those they would like to represent them, and for those representatives to pay attention to the citizens they represent. We have a very complex and weird process that’s going on in the United States. We, as Americans, have to pay attention to what’s going on in the courts because we do not want things to happen that we are not conscious of. We need to pay attention. Any other comments in the ending part for you?

I’ll leave it at this point. Despite our desires not to go into gerrymandering, you had to throw it in at the end, so I’m going to stop.

Thank you. I didn’t want to do that, and then I thought, “It’s a perfect place to do something with it.” I’m very glad that you didn’t send me anything about gerrymandering this time because there’s too much of the discussion we’re talking about. We’re talking more about what happens to human beings in our nation, and that is very important. A good friend of mine from Boston sent me a tremendous amount of factual data about the state of affairs and abortions in women in America. I can’t remember which episode it was previously, but I gave a lot of that data and so forth.

It is time for all of us to realize that as citizens, we have the right to vote for the people who represent our values and the positions that we think need to be taken for the citizens of the United States. Thank you. It’s a privilege to be your friend and colleague. Thank you so much for all the efforts you made putting this discussion together because I’ve been worried about this. You gave me some good answers. I’ll end it there. Thank you, readers. I hope this has been helpful.

Important Links

About Richard Wilson

Richard Wilson is a veteran trial and appellate lawyer. His practice emphasizes the defense of professionals in federal and state courts, and before disciplinary agencies.

For over 20 years, Richard has focused on representing lawyers directly and on behalf of lawyers’ professional liability insurers.

During that time, he has defended and advised hundreds of lawyers and law firms against legal malpractice claims and professional ethics complaints.

His experience as a trial lawyer and with the law of lawyering has enabled him to both counsel and protect his lawyer clients when they find themselves parties instead of advocates or counselors.

Richard G. Wilson

KERR WILSON, P.C.

16676 Northchase Drive, Suite 450

Houston, Texas 77060

(281) 260-6304

EDUCATION

University of Texas at Austin, J.D., 1995

Louisiana State University, B.S., Finance, cum laude, 1992

BAR ADMISSIONS

State Bar of Texas

S. District Courts for the Eastern, Northern, and Southern Districts of Texas
S. Court of Appeals for the Fifth Circuit

PROFESSIONAL EXPERIENCE

Kerr Wilson Houston, Texas

Shareholder 2008- present

Represented clients in breach of contract, tort, employment, and insurance cases
First chair trial experience
Lead counsel in multiple appeals in both state and federal appellate courts
Advisor for small and mid-sized businesses in the energy industry
Responsible for all facets of managing and operating a law office

McFall, Breitbeil & Shults Houston, Texas

Associate & Shareholder 2001- 2008

Represented clients in breach of contract, tort, employment, and insurance cases
First chair trial experience
Lead counsel in multiple appeals in both state and federal appellate courts
Established the budget, managed litigation, identified corporate objectives, retained local counsel and experts, and tried complex cases that were pending in multiple jurisdictions

Chamberlain, Hrdlicka, White, Williams & Martin Houston, Texas

Associate 1997-2001

Hirsch, Robinson, Sheiness & Glover Houston, Texas

Associate 1995-1997

ACHIEVEMENTS

First chair jury trials in professional liability, breach of contract, insurance, trade secret, and personal injury cases
Appeals to the Fifth Circuit and Texas appellate courts
AV Rated by Martindale-Hubbell

PUBLISHED CASES

Webb v. Crawley, 590 S.W.3d 570 (Tex. App.—Beaumont 2019, no pet.)
O’Hern v. Mughrabi, 579 S.W.3d 594 (Tex. App.—Houston [14th Dist.] 2019, no pet.)
Sheller v. Corral Tran Singh, LLP, 551 S.W.3d 357 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)
Kelly v. Nichamoff, 868 F.3d 371 (5th Cir. 2017)
Stallworth v. Ayers, 510 S.W.3d 187 (Tex. App.—Houston [1st Dist.] 2016, no pet.)
Galindo v. Prosperity Partners, Inc., 429 S.W.3d 690 (Tex. App.—Eastland 2014, pet. denied)
Graper v. Mid-Continent Cas. Co., 756 F.3d 388, 390 (5th Cir. 2014)
Allstate Tex. Lloyd’s v. McKinney, 964 F. Supp. 2d 678 (S.D. Tex. 2013)
Glattly v. Air Starter Components, Inc., 332 S.W.3d 620 (Tex. App.—Houston [1st Dist.] 2010, pet. denied)
Willbros RPI, Inc. v. Continental Cas. Co., 601 F.3d 306 (5th Cir. 2010)
Duerr v. Brown, 262 S.W.3d 63 (Tex. App.—Houston [14th Dist.] 2008, no pet.)
Digges v. Knowledge Alliance, Inc., 176 S.W.3d 463 (Tex. App.—Houston [1st Dist.] 2004, no pet.)
Bauer v. Texas, 341 F.3d 352 (5th Cir. 2003)
King v. Dallas Fire Ins. Co., 85 S.W.3d 185 (Tex. 2002)

PUBLICATIONS

Author, From Advocate to Party – Defenses for Lawyers Who Find Themselves in Litigation, 61 LAW REVIEW OF SOUTH TEXAS COLLEGE OF LAW 43 (2020)
Author, Policy Benefits- Are They Recoverable Under Extra-Contractual Theories When A Covered Claim is Denied?, JOURNAL OF TEXAS INSURANCE LAW, Volume 12, Issue 5, at 17

(cited by the Texas Supreme Court in USAA Texas Lloyds Co. v. Menchaca, 545 S.W.3d 479, 487 (Tex. 2018))

Author, The Additional Insured, an update of recent developments in Texas focusing on additional insured clauses and indemnity agreements
Co-author, Recent Legislation Concerning Attorneys

Texas Lawyers’ Insurance Exchange Newsletter

Panelist, Occurrence-Innocent Insured Pays Price for Guilty Third Party?

Presented to the Insurance Practice Section of the State Bar of Texas

REPRESENTATIVE EXPERIENCE

Successfully defended an attorney in a two-week trial in federal court against fraud claims based on representations made during negotiations for the purchase of a multi-million-dollar interest in an oilfield services company.
Defended one of the world’s largest insurance brokers in a malpractice and breach of fiduciary duty case. This was one of the first cases to go to trial concerning broker duties related to the failure of Reliance. I obtained a take nothing judgment for the broker.
Defended an oilfield services company in a catastrophic injury case where the client destroyed the key piece of evidence after the accident. After a week-long trial, the jury returned a finding of minimal liability and damages against the client.
After a month long trial, obtained a take nothing judgment for a manufacturing company in a misappropriation of trade secrets case. Represented that client and several co-defendants in the appeal, and successfully reversed an unfavorable verdict against the co-defendants.
Successfully defended a liability insurer in a bad faith and Texas Insurance Code case concerning damages to a major pipeline. Obtained a summary judgment in the client’s favor, and persuaded the Fifth Circuit that the client’s coverage position was correct on appeal.
Represented an employer in an insurance coverage dispute all the way to the Texas Supreme Court, and persuaded the Texas Supreme Court to recognize coverage for the employer when an employee has committed an intentional act.
After being hired by a probate judge to defend him, successfully obtained the dismissal of a suit against him and on appeal defined the judicial immunity available to courts in Texas.
Obtained summary judgment for a law firm sued for malpractice over its handling of Sulzer implant cases. The summary judgment was affirmed on appeal.