Ruling deals blow to access to abortion pill mifepristone — but nothing changes yet
Updated August 16, 2023 at 7:17 p.m. ET
A federal appeals court ruled Wednesday that mifepristone, one of two pills used in medication abortions, should not be prescribed past seven weeks of pregnancy or via telemedicine. However, a previous stay by the Supreme Court means this won't go into effect right away.
The pills will remain on the market in states where abortion is legal and available by telemedicine and mail for the time being.
The Alliance Defending Freedom, which brought the case, cheered the opinion.
"This is a significant victory for the doctors and medical associations we represent and, more importantly, the health and safety of women," says Erin Hawley, the senior counsel with the Alliance Defending Freedom.
The federal Department of Justice is defending the Food and Drug Administration in the case. A spokesperson for DOJ said the department strongly disagrees with the ruling and is looking for the Supreme Court to review it.
Mary Ziegler, a professor of law at the University of California-Davis who has written books about the history of abortion, said she was not surprised by the decision. "My impression is that this is the 5th Circuit trying to resurrect what had been a pretty flawed case in the hope that this Supreme Court is conservative enough that there's no case too weak or extreme, really, for this court on abortion," says Ziegler.
The Supreme Court could decide to hear the case in the fall, possibly with another case from Washington state that seeks to expand access to the medicine. If it decides not to hear the case, the 5th circuit's decision could stand.
The case is an unprecedented challenge to the authority of the FDA to approve medications.
A three judge panel of the 5th Circuit heard arguments in the case in May. All three judges were appointed by Republicans. Two are Trump appointees, one was appointed by George W. Bush.
Mifepristone and misoprostol, the two-drug regimen, is used in about 50% of abortions now. Since its approval by the FDA in 2000, the drug has been used for abortions by more than 5 million women in the U.S. A study from KFF, an independent health policy organization, determined that medication abortion successfully terminates pregnancy 99.6% of the time. The foundation found a .4% risk of major complications and a mortality rate of less than .001%.
The crux of the plaintiffs' case concerns those rare complications. Plaintiffs' attorney Hawley, who is married to Sen. Josh Hawley, the Republican from Missouri, argued that physicians who oppose abortion would be facing a moral injury if they had to care for a woman who had a complication after taking mifepristone.
"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," Hawley said in a statement. "The FDA will finally be made to account for the damage it has caused to the health of countless women and girls and the rule of law by unlawfully removing every meaningful safeguard from the chemical abortion drug regimen."
If the Supreme Court hears the case in the fall, it will likely rule in spring 2024. Its stay likely would remain in effect until it rules.
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