Appeals Court Rules to Restrict Abortion Pill Access

A patient prepares to take a pill in Kansas City, Kansas, on Oct. 12, 2022. Charlie Riedel/AP Photo

A New Orleans-based appeals court has ruled to restrict access to the abortion pill mifepristone, partially upholding a lower court ruling that alarmed abortion advocates but won praise from pro-life groups.

A three-judge panel at the 5th U.S. Circuit Court of Appeals ruled on Aug. 16 (pdf) to uphold a lower court’s ruling that would end the availability of the abortion drug by mail and instead require it to be administered in the presence of a doctor.

“The 5th Circuit rightly required the FDA to do its job and restore crucial safeguards for women and girls, including ending illegal mail-order abortions,” Erin Hawley, senior counsel for the Alliance Defending Freedom, said in a statement reacting to the appeals court’s decision.

Attorneys from the Alliance Defending Freedom filed the original lawsuit (pdf) on behalf of the plaintiffs, the Alliance for Hippocratic Medicine, against the Food and Drug Administration (FDA) in a Texas court that eventually made its way to the Louisiana-based appeals court.

The restriction on mifepristone won’t go into effect immediately, however. The appeals court judges noted that the abortion pill would continue to be made available by mail because of an emergency order from the U.S. Supreme Court in April that preserved the status quo during the appeal process.

“We note that our holding is subject to the prior order of the Supreme Court, which stayed the district court’s order pending resolution of this appeal and disposition of any petition for writ of certiorari,” the judges wrote in the ruling. This means that the pill remains available until the Supreme Court has dealt with a request for further review.

The Supreme Court said in its April 21 emergency order (pdf) that if it denies a request for review (writ of certiorari), then the ban on the distribution of the abortion pill by mail would go into effect immediately.

If the Supreme Court decides to grant the writ of certiorari and review the case, then the abortion pill will continue to be available until the high court issues its final ruling—and possibly beyond that time if the decision is unfavorable to the parties seeking the restrictions.

An appeal of the 5th Circuit court’s decision to the Supreme Court would have to take place within three months of the Aug. 16 ruling, but there’s no deadline for when the justices can decide whether to review the case.

Also, in its Aug. 16 judgment, the New Orleans-based appeals court ruled to overturn a portion of the lower court’s ruling that revoked the FDA’s initial approval of the abortion pill decades ago.

Mifepristone (Mifeprex) and Misoprostol, the two drugs used in a chemical abortion, are seen at the Women's Reproductive Clinic, in Santa Teresa, N.M., on June 17, 2022. Robyn Beck/AFP/Getty Images

Lawsuit Challenging FDA Approval of Mifepristone

In 2000, the FDA approved the abortion pill for ending pregnancies at seven weeks gestation or less. In 2016, the FDA extended the use in pregnancies at up to 10 weeks gestation.

Since the Supreme Court overturned its 1973 Roe v. Wade decision in 2022, the abortion drug has been increasingly prescribed and has become the most common method of abortion in the United States.

Chemical abortion, also referred to as medication abortion, accounts for more than half of the total U.S. abortions.

In November 2022, the Alliance for Hippocratic Medicine and four doctors sued the FDA, alleging that the approval process for mifepristone was flawed and unlawful because it didn’t adequately review the drug’s safety risks when used by girls younger than age 18 to terminate a pregnancy.

Then on April 7, the Texas judge who was hearing the case issued a ruling (pdf) that found that the FDA was wrong to approve the abortion pill.

Judge Matthew Kacsmaryk, an appointee of President Donald Trump, also found that the FDA had improperly lifted restrictions on access to the drug.

The FDA “acquiesced on its legitimate safety concerns—in violation of its statutory duty—based on plainly unsound reasoning and studies that did not support its conclusions,” Judge Kacsmaryk wrote in the ruling.

“There is also evidence indicating [the] FDA faced significant political pressure to forego its proposed safety precautions to better advance the political objective of increased ‘access’ to chemical abortion.”

The FDA’s failure to impose restrictions on the use of the drug “resulted in many deaths and many more severe or life-threatening adverse reactions,” he wrote.

The Department of Justice (DOJ) appealed Judge Kacsmaryk’s decision on April 12, and the 5th Circuit appeals court refused to block most of the order.

The DOJ appealed that decision to the Supreme Court, which issued a stay that temporarily blocked the order until April 19.

The Supreme Court later extended the stay to April 21 and then, on that day, again blocked the order, allowing mifepristone to remain on the market at least until the 5th Circuit resolves the case.

Conservative-leaning Justices Samuel Alito and Clarence Thomas voted against extending the stay.

While it’s likely that the 5th Circuit court’s judgment will be appealed to the Supreme Court, it remains unclear whether it will be taken up and, if so, when a judgment can be expected.

Meanwhile, Planned Parenthood took to X, formerly Twitter, to publicize the fact that the appeals court’s Aug. 16 ruling doesn’t affect the availability of the drug.

“It remains FDA-approved and available in many states across the country, including via telehealth,” the group stated on X.

In six of the 15 states where access to abortion pills is restricted, an in-person physician visit is required.

States also regulate telemedicine consultations for prescribing medications. In states with abortion pill restrictions, health providers could face penalties, such as fines or license suspension, for attempting to send pills through the mail.

Matthew Vadum contributed to this report.