Technology and Science09 September, 20263 min read
5th U.S. Circuit Court Hears Louisiana Bid To Curtail Mifepristone Abortion Pill Access
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Fifth Circuit hearing considers restricting mifepristone prescribing, including telehealth and mail/pharmacy dispensing. Louisiana argues to roll back access, seeking nationwide restrictions on abortion drug.
Court weighs abortion pill rules
A federal appeals court in New Orleans heard arguments in a case that could curtail nationwide access to medication abortion by challenging a 2023 Food and Drug Administration rule that allows mifepristone to be prescribed via telehealth and dispensed by mail.
Louisiana Solicitor General Ben Aguiñaga told the 5th U.S. Circuit Court of Appeals that “There’s no dispute that Louisiana is experiencing 1,000 abortions a month due to mifepristone mailed into the state,” arguing the FDA’s change infringed on Louisiana’s right to ban abortion.
The hearing also focused on whether Louisiana exhausted other administrative options before turning to the courts, and on whether the state had standing to sue, with Judge Stephen Higginson asking, “There are too many independent actors to say that actually the government’s assessment of safety is what’s causing your 1,000 abortions a month.”
The Justice Department attorney Daniel Winik declined to argue the merits and instead urged the court to focus on standing, while the FDA review that is looming over the proceedings is expected to take six months to complete, according to an administration official.
The case is one of three brought by anti-abortion attorneys general from red states challenging federal rules that allow abortion pills to be mailed to states where it is largely illegal to terminate a pregnancy, and it is expected to return to the Supreme Court if the 5th Circuit rules against Louisiana.
Judges press standing and FDA
During Wednesday’s arguments, Judge Priscilla Richman asked about whether the FDA had approved mailing mifepristone into states where it is unlawful, telling Louisiana Solicitor General Ben Aguiñaga, “I’m having trouble finding anywhere in the record that the FDA has approved the mailing of this drug into states where it’s unlawful to do that.” DOJ attorney Daniel Winik said he had “no idea” what action the FDA may ultimately take, but argued that the matter should be left to the agency to decide, while the Justice Department urged courts to put mifepristone lawsuits on hold until the FDA finishes a safety review. Reuters reported that the panel appeared skeptical of Louisiana’s bid to block the 2023 rule, and noted that Judge Stephen Higginson repeatedly pointed to the Supreme Court’s May action that lifted a prior order allowing mifepristone to continue being prescribed through telemedicine and dispensed by mail.
The Hill described how at least one judge seemed skeptical of attributing harm to the federal government’s safety assessment, with Higginson questioning whether the court could “attribute that to the federal government?” In the same hearing, lawyers for the drugmakers GenBioPro and Danco Laboratories argued the drug is safe and that the FDA in 2023 adequately assessed risks, with GenBioPro lawyer John Elwood saying, “The FDA's decision was richly supported.”
What’s at stake next
The case is framed by abortion opponents as a way to clamp down on providers in states where abortion is legal from sending drugs for medication abortions into states where it is not, and ABC7 Los Angeles said the 5th Circuit could decide whether patients can continue accessing mifepristone by mail and at pharmacies.
“‘Preventing people from getting their mifepristone prescription by mail and at pharmacies is just the start.”
Abortion rights advocates warn that if telehealth and pharmacy access are restricted, patients would face barriers to getting the medication, and the ACLU said, “Preventing people from getting their mifepristone prescription by mail and at pharmacies is just the start.”
The ACLU also argued that the Trump administration is conducting another review of mifepristone as a pretext for imposing “extreme and medically unjustified restrictions on access,” and said, “The ACLU will use every tool we have to protect access to this safe and effective medication for people across the country.”
ABC7 Los Angeles reported that at issue is whether prescribing rules should be tightened for mifepristone, which is used in a two-drug combination and is part of a broader effort to restrict abortion access four years after the U.S. Supreme Court allowed states to decide the issue.
NPR described how telehealth access can function as “the difference between receiving care and not receiving care,” quoting Dr. William Richardson’s account that a patient living 100 miles from his Tucson clinic would not have to drive long distances if mifepristone is available through mail-order pharmacy after a telehealth consult.