A federal appeals court packed with conservatives has handed abortion opponents a major victory against the US Food and Drug Administration, reinstating an in-person dispensing requirement for the abortion medication mifepristone and shutting down telemedicine providers—at least temporarily—from prescribing the abortion pill across the US.
In a 3-0 order issued Friday afternoon, the Fifth US Circuit Court of Appeals granted Louisiana’s request for an injunction against FDA rule changes from 2023 that have allowed blue-state telehealth providers to send mifepristone to thousands of patients every month in states where abortion is banned. Abortion pills now account for almost two-thirds of abortions nationwide.
The decision, however, does not affect misoprostol, the second medication used with mifepristone to terminate pregnancies—and a powerful abortion drug on its own. Nor does it stop in-person prescription of abortion pills. Nonetheless, the injunction will have the greatest impact on women in the dozen or so states—many in the South—where lawmakers and attorneys general have sought to end abortion access completely.
The 2023 telemedicine rule “injures Louisiana by undermining its laws protecting unborn human life and also by causing it to spend Medicaid funds on emergency care for women harmed by mifepristone,” Judge Stuart Kyle Duncan wrote for the court. “Both injuries are irreparable.”
“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,’” Duncan wrote. He was appointed to the Fifth Circuit by President Donald Trump in 2017.
“Telehealth has been the last bridge to care for many seeking abortion, which is precisely why Louisiana officials want it banned,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “This isn’t about science—it’s about making abortion as difficult, expensive, and unreachable as possible. Telehealth has transformed healthcare. Selectively stripping that away from abortion patients is a political blockade.”
The ruling was expected to be appealed to the US Supreme Court.
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In April, US District Judge David Joseph—also a Trump appointee—put the lawsuit on hold pending the FDA’s own review of mifepristone’s safety, which has been underway since last fall. Even though the Trump administration has made clear its own concerns about the telemedicine rule, it has argued that rolling back the Biden rules while its study is ongoing amounts to “judicial intervention” in the agency’s long-established drug review process.
But abortion opponents have seen that study as a delaying tactic by a White House worried about the impact that cutting off access to abortion pills might have on the GOP’s already grim prospects in the midterm elections. Murrill quickly appealed to the Fifth Circuit, which encompasses Louisiana, Texas, and Mississippi—one of the most conservative federal jurisdictions in the country.
It is the same appeals court that ruled in a similar but separate lawsuit three years ago that the FDA exceeded its authority when it relaxed an assortment of restrictions on mifepristone during the Obama and Biden administrations, including the telemedicine rule. The Supreme Court eventually rejected that case, because the anti-abortion doctors who brought it didn’t have standing to sue. But the SCOTUS ruling did not address the far bigger and thornier issue of whether the FDA’s rule changes were legal.
This is nothing but the forced-birth zealots finding a way to get something done that they couldn’t get done through legislative means, because what they want is far too unpopular to pass via those means. The Fifth Circuit is the perfect vehicle for that, and that’s why it must be taken apart and rebuilt from scratch at the first opportunity. As long as it’s allowed to do this shit, we don’t live in anything resembling a democracy. The Trib and The 19th have more.
UPDATE: Per Law Dork, this is already before SCOTUS, as one of the makers of mifepristone asks for an emergency hold on this order, citing both its lawlessness and the chaos it would cause.