A federal appeals court on Wednesday ruled to restrict access to the abortion pill mifepristone but not remove it from the market entirely, partially upholding a lower court’s decision.
The decision from the three-judge panel of the 5th U.S. Circuit Court of Appeals would effectively block mail-order prescriptions of the pill. However, access will remain unchanged for now, as the Supreme Court issued an emergency order this spring to preserve the status quo while the case goes through the appeals process.
The case is all but assured to head to the highest court, which last year overturned Roe v. Wade. Since the ruling, 14 states have implemented abortion bans and another 11 have imposed limits, some up to six weeks of pregnancy.
All three of the 5th Circuit judges are conservatives appointed by Republican presidents. During a May 17 hearing on the case, the panel questioned the Food and Drug Administration’s authority and mifepristone’s safety.
“I don’t understand this theme [that] ‘the FDA can do no wrong.’ That is basically the narrative you’re putting forth — nobody should ever question the FDA,” Judge James Ho said.
The FDA approved mifepristone in 2000 for abortion and miscarriages up to seven weeks of pregnancy, and in 2016 extended approval up to 10 weeks of pregnancy, covering the period when the vast majority of abortions occur. Over more than two decades, fewer than 1% of mifepristone users have reported serious side effects.
A conservative Texas judge, Matthew Kacsmaryk, in April ordered the pill off the market entirely, siding with plaintiffs who argued the FDA had acted hastily when reviewing the drug.
Wednesday’s ruling reverses that order but maintains a limit on sending mifepristone through the mail, which first became commonplace during the pandemic until the FDA in December 2021 made the change permanent.
Patients previously had to visit a doctor’s office and take mifepristone in front of their physician.
In a partially dissenting opinion, Ho made it clear that he wanted the pill banned entirely. “I would hold the 2000 approval unlawful,” he wrote.
While practitioners maintain that they are not sending the drug across state lines into abortion-restrictive areas, it is difficult to regulate. The mail-order ban, if maintained, will make it much more difficult for patients trying to acquire the medication within the 10-week limit.