The 5th U.S. Circuit Court of Appeals on Wednesday ruled that access to the abortion pill, mifepristone, should be sharply curtailed, ramping up the legal threat to the most popular method of ending a pregnancy.
The decision — if allowed by the Supreme Court to take effect — would roll back actions the federal government has taken since 2016 to make the pills more accessible, including rules allowing online ordering, mail delivery and pharmacy dispensing of the drugs.
Despite the appellate court’s ruling, there will be no change in how the pills are distributed until the Supreme Court revisits the issue, likely in 2024. But with bans in force in many states, the current patchwork of availability will continue.
Judge James Ho — appointed by former President Donald Trump — wanted to go further and strip FDA approval of the drugs, but he was overruled by his two colleagues. They said it's too late for anti-abortion groups to challenge the original approval given that the agency declared the drugs safe and effective more than two decades ago.
Though the decision has no immediate impact, the appellate court’s endorsement of conservatives’ bid to limit access to the abortion pill puts the medication in greater peril and could influence the Supreme Court when it hears the case.
The Alliance for Hippocratic Medicine — a coalition of anti-abortion medical groups that formed in Texas last year — challenged both the FDA’s original 2000 approval of mifepristone, arguing the agency didn’t adequately consider the drug’s safety risks, as well as later agency actions that loosened restrictions on the pills. The groups claim their physician members are harmed by the pills’ availability because they may at some point need to provide follow-up care for a patient who took them and had a complication.
Together with another drug, misoprostol, mifepristone is approved through 10 weeks of pregnancy, and is used in more than half of abortions nationwide.
The Biden administration and the pharmaceutical company Danco, which makes the drug, are defending federal regulation of the pills, pointing to their decadeslong safety record. They and other companies have warned that a win for the challengers would inspire copycat lawsuits targeting other drugs, such as Covid vaccines and contraception, and argued that treating rare complications is part of doctors’ jobs — not an infringement on their religious rights.
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