Court restricts mifepristone access nationwide
NEW ORLEANS — A federal appeals court has restricted access to one of the most common means of abortion in the U.S. by blocking mailing of mifepristone prescriptions.
Friday’s unanimous ruling from a three-judge panel of the New Orleans-based 5th U.S. Circuit Court of Appeals is requiring that the abortion pill be distributed only in person and at clinics, overruling regulations set by the federal Food and Drug Administration.
The ruling, which is likely to be appealed to the U.S. Supreme Court, is the biggest jolt to abortion policy in the U.S. since the 2022 Supreme Court ruling that overturned Roe vs. Wade and allowed states to enforce abortion bans.
In the ruling, Judge Kyle Duncan, who was appointed by President Trump, agreed with the state of Louisiana’s contention that allowing the drug to be mailed there makes moot the state’s ban on abortion at all stages of pregnancy.
“Every abortion facilitated by FDA’s action cancels Louisiana’s ban on medical abortions and undermines its policy that ‘every unborn child is a human being from the moment of conception and is, therefore, a legal person,’” the ruling states.
Commonplace treatment
Mifepristone was approved in 2000 as a safe and effective way to end early pregnancies. It is typically used in combination with a second drug, misoprostol.
Surveys have found that the majority of abortions in the U.S. are provided via pills and that about 1 in 4 abortions nationally are prescribed via telehealth.
One survey of abortion providers last year estimated that more women in states where abortion is banned obtained abortions that way than by traveling to other states.
Some Democratic-led states have laws that seek to protect providers who prescribe via telehealth to patients in places with bans.
That rise in prominence is why abortion opponents have targeted the pills in legislation and litigation.
Little precedent
There is little precedent for a federal court overruling the scientific regulations of the FDA, and it wasn’t immediately clear how quickly or completely the decision would affect mailing of the drug throughout the country.
Judges have long deferred to the agency’s judgments on the safety and appropriate regulation of drugs.
FDA officials under Trump have repeatedly stated that the agency is conducting a new review of mifepristone’s safety, at the direction of the president.
The judges, all nominated by Republican presidents, noted in their ruling that the FDA “could not say when that review might be complete and admitted it was still collecting data.”
Because of rare cases of excessive bleeding, the FDA initially imposed strict limits on who could prescribe and distribute the pill — only specially certified physicians and only after an in-person appointment where the person would receive the pill.
Both requirements were dropped during the COVID-19 emergency. At the time, FDA officials under President Biden said that after more than 20 years of monitoring mifepristone use, and reviewing dozens of studies involving thousands of women, it was clear that women could safely use the pill without direct supervision.
GenBioPro, which makes generic mifepristone, said in a statement that the court’s decision “ignores the FDA’s rigorous science and decades of safe use of mifepristone in a case pursued by extremist abortion opponents.”
Broader impact
In a court filing, Louisiana’s attorney general and a woman who said she was coerced into taking abortion pills requested that the FDA rules be rolled back to when the pills were allowed to be prescribed and dispensed only in person.
A Louisiana-based federal judge last month ruled that those allowances undermined the state’s abortion ban but stopped short of undoing the regulations immediately.
Friday’s ruling is in effect as the case works its way through the courts and extends beyond Louisiana and other states with abortion bans.
Telehealth prescriptions have become common even in states where abortion is allowed — and the ruling blocks them there, too.
“This is going to affect patients’ access to abortion and miscarriage care in every state in the nation,” said Julia Kaye, an ACLU lawyer. “When telemedicine is restricted, rural communities, people with low incomes, people with disabilities, survivors of intimate partner violence and communities of color suffer the most.”
The National Right to Life Committee said the ruling “restores a critical layer of oversight” in women’s health.
“Women deserve better than an abortion-by-mail system that prioritizes ideology over safety,” said Carol Tobias, the group’s president.
Next step
Friday’s ruling sets up a likely appeal to the Supreme Court.
“I look forward to continuing to defend women and babies as this case continues,” Louisiana Atty. Gen. Liz Murrill, a Republican, said in a statement.
The conservative-majority high court overturned abortion as a nationwide right in 2022 but unanimously preserved access to mifepristone two years later.
That 2024 decision sidestepped the core issues, however, by ruling that the antiabortion doctors behind the case didn’t have legal standing to sue.
Representatives for the FDA and the U.S. Department of Justice did not immediately respond to requests for comment Friday evening.
In the meantime, antiabortion groups are celebrating Friday’s ruling. Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, applauded the ruling as “a huge victory for victims and survivors of Biden’s reckless mail-order abortion drug regime.” She also criticized the Trump administration for taking time to conduct its own review of mifepristone, saying its slow movement has forced states to take action.
“Women and children suffer and state sovereignty is violated every day the FDA allows abortion drugs to flood the mail,” Dannenfelser said.
Mulvihill and Schoenbaum write for the Associated Press. AP writers John Hanna, Matthew Perrone and Lindsay Whitehurst contributed to this report.
