Appeals Court Restricts Access to Abortion Pill

Updated August 17, 2023 

• A federal appeals court panel ruled that the abortion pill should remain legal in the U.S. but imposed significant restrictions on its accessibility. The decision will prohibit the drug from being sent through the mail and prescribed by telemedicine, but keeps the FDA's 23-year-long approval of the pill in place. 
• For now, the ruling will have no effect on mifepristone — in April, the Supreme Court declared it would remain available under the current rules. After the appeals court ruling, the Justice Department requested that the justices hear the case. The court will likely act in the next few months, either agreeing to restrict access to the pill or hearing the appeal.
• If the Supreme Court upholds the appeal court's decision, it will reverse changes made by the FDA in recent years to increase access to the pill.
• Judge James Ho, a Trump appointee on the panel, wrote:

"Scientists have contributed an enormous amount to improving our lives. But scientists are human beings just like the rest of us. They're not perfect. None of us are. We all make mistakes. And the F.D.A. has made plenty."

Updated - May 17, 2023 - 2:30pm EST

• Three conservative-leaning appeals court judges, Jennifer Walker Elrod, James Ho, and Cory Wilson, will hear arguments today on whether the abortion pill, mifepristone, is safe and should remain available. 
• The three judges are from the highly conservative New Orleans 5th Circuit Court of Appeals and each has a history of supporting anti-abortion legislation. Ho has previously referred to abortion as a "moral tragedy." Jennifer Walker Elrod was appointed by George W. Bush and James Ho and Cory Wilson were both nominated by Donald Trump.
• Oral arguments began at 1 p.m. CT.
• It may take them months to issue a ruling and their decision on the safety of the abortion pill will likely be appealed to the U.S. Supreme Court.
• Access to the abortion pill will likely remain unchanged until the Supreme Court makes a final ruling or declines to hear the case.

What's happening with the abortion pill?

• While the U.S. Supreme Court decided not to limit access to the abortion pill mifepristone, the ultimate fate of the pill remains unclear as the lawsuit continues in the lower courts.
• The U.S. Justice Department and mifepristone manufacturers Danco Laboratories asked the Supreme Court to intervene and suspend the restrictions. They argued that changing the Food & Drug Administration's (FDA) twenty-three-year-old ruling would "create significant chaos for patients, prescribers, and the health care delivery system."
• Last Friday, the Supreme Court issued a decision allowing the drug to remain on the market without the restrictions imposed by the lower courts. The lawsuit continues in the lower New Orleans 5th Circuit Court of Appeals, where it is being reviewed.  

What's the backstory?

Texas District Court

• The legal battle over the abortion pill was brought into focus by Texas Judge Matthew Kacsmaryk's ruling in favor of anti-abortion professionals in their suit against the FDA over the safety of mifepristone.
• Kacsmaryk suspended the FDA's approval of the drug, representing the first time in American history that a court challenged the FDA's approval. The abortion pill was approved in 2000, highlighting the unprecedented nature of Kacysmaryk's decision.

Washington State Court

• Immediately after the decision in Texas, Obama appointee District Judge Thomas Rice in Washington issued a contradictory ruling, ordering the FDA not to make any changes to mifepristone access across seventeen Democrat-led states.

The Biden administration's reaction

• The Biden administration and the manufacturer of mifepristone requested the high court to intervene and halt Kacsmaryk's ruling.
• Lawmakers like Sen. Ron Wyden (D-OR) and Rep. Alexandria Ocasio-Cortez (D-NY) urged Biden to protect the drug's availability through executive decree.
• In a tweet, Biden declared the White House's opposition to the suspension:

"We're going to fight it. The Attorney General has announced @TheJusticeDept will file an appeal and seek an immediate stay of the decision."

The New Orleans 5th Circut Court of Appeals

• With the two rulings in Texas and Washington contradicting each other, the Biden administration appealed to the New Orleans-based 5th Circuit Court of Appeals, requesting the federal judges to put Kacsmaryk's order on hold to keep the abortion pill available to women nationwide. 
• The court agreed to keep mifepristone on the market but applied several restrictions: limiting the pill's use to seven weeks gestation, requiring that the medication be prescribed and dispensed by an in-person physician, and banning it from being accessible through the mail. 
• The appeals court has revoked the FDA's 2019 approval of the generic, more affordable form of the drug.

What is next for the abortion pill?

• Access to the pill depends on what happens during the appeals process in the 5th Circuit Court of Appeals, where arguments will begin on May 17.
• The Supreme Court's stay on the ban is only valid until the appeals process ends and whether the appeals court rules in Texas's or Washington's favor. 
• The ruling could create a new precedent in courts' abilities to challenge federal agencies. The Food, Drug, and Cosmetic Act of 1938 gives the FDA the authority to determine whether drugs are safe, and this ruling could directly impinge upon the FDA's long-standing authority. 

Do you support keeping the abortion pill legal and accessible?

—Emma Kansiz