Appeals Court Approves Sweeping Abortion Pill Restrictions, Teeing Up Scotus Showdown

The 5th Circuit Court of Appeals on Friday rolled back access to the abortion pill mifepristone nationwide — blocking a 2023 Food and Drug Administration policy allowing the drug to be prescribed by telemedicine and delivered by mail.

A panel of three judges ruled unanimously in favor of arguments from Louisiana that the Biden-era regulations on the drug threaten the state’s sovereignty and the safety of pregnant women. The judges rejected the Trump administration’s assertion that the state lacks standing, and that the court should hit pause on the case while the FDA conducts its own review of the drug.

The court also rebuffed arguments by the two pharmaceutical companies that make mifepristone, Danco and GenBioPro, who argued that the court should defer to the FDA’s scientific judgment when it comes to whether and how patients can access the pills.

Earlier this month, Louisiana appealed a district court ruling that granted the Trump administration’s request to put its lawsuit against the FDA on ice but demanded the agency quickly complete its review of the pill’s safety and give the court a status report by this coming October 7.

That judge, Trump appointee David C. Joseph, warned that granting Louisiana’s request to reimpose the rule that patients only obtain mifepristone in person from a doctor would be, in effect, “government by lawsuit.”

This case is one of several filed by GOP state attorneys general seeking to cut off access to pills that are being mailed to patients in their states in defiance of bans on abortion. Idaho, Kansas, and Missouri are making arguments similar to Louisiana’s in the hopes of a telehealth ban, while Florida and Texas are trying to go further and outlaw the sale of mifepristone altogether, challenging the 25-year-old FDA approval of the drug.

In all the lawsuits, the Trump administration has declined to defend the FDA’s rules for the drugs on the merits, and has instead argued the states lack standing or are acting prematurely, and has requested courts allow the agency to conduct its review without interference.

That stance has exacerbated the anti-abortion movement’s frustration with the administration over its inaction to curb the availability of pills. Some GOP lawmakers, who say they don’t believe FDA is reviewing mifepristone in good faith, have introduced bills to force the agency’s hand, but they are not likely to pass in the currently gridlocked Congress.

While an appeal to the Supreme Court is expected by advocacy groups and legal experts, even a temporary disruption of access to the drugs will have massive implications. Abortion pills are used in nearly two-thirds of all pregnancy terminations, and a quarter of patients depend on telehealth to obtain them. Peer-reviewed studies have found that the drugs are equally safe whether obtained in person from a doctor or online.