The case is now before the 5th U.S. Circuit Court of Appeals, widely considered to be the most conservative federal appeals court in the country.
Oral argument is slated to begin at 2 p.m. ET in a New Orleans courtroom, where the administration will attempt to convince three Republican-nominated judges with hostile views on abortion to keep an abortion drug on the market.
Mifepristone is widely used across the U.S. to end pregnancy in the first 10 weeks of gestation. About half of all abortions nationwide are performed using mifepristone as the first of a two-drug regimen. It is also used to help manage miscarriages.
The case marks the highest-stakes legal battle on abortion since the Supreme Court overturned Roe v. Wade last summer.
Abortion rights advocates said they think it’s an uphill fight.
“This is one of the worst panels of judges that could have been assembled for those who believe that mifepristone should remain on the market,” said Jennifer Dalven, director of the ACLU’s Reproductive Freedom Project.
The appeal will be heard by James Ho, Cory Wilson and Jennifer Elrod. Ho and Wilson were appointed by former President Trump, and Elrod was appointed by former President George W. Bush.
Elrod has upheld several abortion restrictions since her appointment in 2007.
Ho was listed by Trump as a potential Supreme Court pick ahead of the 2020 election.
In a 2018 case involving a Texas law that required the burial or cremation of any fetal remains, Ho in a concurring opinion called abortion a “moral tragedy.”
The next year, he ruled on a challenge to Mississippi’s 15-week abortion ban that became the vehicle for the Supreme Court to overturn Roe. Ho said he was “duty bound” to strike down Mississippi’s law but scolded a lower court’s opinion for its “alarming disrespect” of anti-abortion advocates.
Wilson, meanwhile, voted for Mississippi’s 15-week abortion ban while serving as an elected Republican in the Mississippi legislature.
On a 2007 questionnaire, Wilson indicated that he supported overturning Roe and banning the use of taxpayer funds for abortion, except to protect the mother’s life.
