A federal appeals court has ruled that access to the abortion pill mifepristone must be restricted. The New Orleans-based 5th U.S. Circuit Court of Appeals stopped short of ruling that the drug must be pulled off the market, as a lower court had done. But the panel also ordered that the FDA’s approval of the drug should be reinstated, though with restrictions, including a ban on telemedicine prescriptions and shipments of the pill by mail, which the Justice Department had sought to put on hold.
The ruling was issued Wednesday and will not immediately take effect. The Justice Department is expected to ask the conservative Supreme Court to put that part of the ruling on hold while it appeals. But if it goes into effect, the decision could limit abortion access in blue states such as New York, where the pill is widely available. The panel’s ruling rolled back to the pre-2016 FDA rules, which banned doctors from prescribing mifepristone by phone and limited the window in which patients can obtain the medication to seven weeks of pregnancy instead of 10. The judges also shortened instructions on the pill’s label, saying a patient should see her doctor for a follow-up visit before using the drug.
That will force many women who use the abortion pill to seek a surgical abortion. It will also strain clinics in cities like New York, where abortions are legal but difficult to find. A separate case involving the same issues in Washington state has not yet gone to an appeals court.
Anti-abortion groups sued the federal Food and Drug Administration after a district court judge in Texas struck down the agency’s 2000 approval of mifepristone. The lawsuit claimed that the approval violated a 19th-century law barring mailing “immoral, obscene, or derogatory” material.
In a 2-1 decision, the 5th Circuit judges who heard the case sided with the plaintiffs. Judge Catharina Haynes, a George W. Bush appointee, wrote that physicians who oppose abortion would suffer a “concrete injury” when they have to divert time and resources away from their regular patients to care for women in the event of complications from taking the pill. Judge James Ho, a Donald Trump nominee, agreed that doctors who object to abortions would face an injury if they were forced to prescribe or dispense the pill.
He wrote that the FDA’s actions were unsupported by science and noted that the Supreme Court had overturned a similar FDA action. He also argued that the drug’s approval was unlawful under the Comstock Act, which permits the FDA to approve drugs for serious or life-threatening illnesses but not to treat an abortion itself.
Justice Department attorney Sarah Harrington, the other judge on the panel, disputed that argument and argued that the physicians did not qualify as suffering an injury under the law. She questioned the plaintiffs’ lawyers over whether they had enough evidence to prove that the FDA had improperly used the Comstock Act. The Supreme Court will hear the appeals court’s case this fall.