Key facts
- A U.S. appeals court heard arguments on Louisiana's challenge to the FDA's 2023 rule on mifepristone.
- The state argued the rule, allowing telemedicine prescriptions and mail dispensing, undermines its abortion bans.
- Judges questioned Louisiana's legal standing and whether the rule directly caused abortions within the state.
- The FDA's ongoing safety review of mifepristone was acknowledged during the proceedings.
A U.S. appeals court on Wednesday appeared skeptical of Louisiana's bid to curtail access to the abortion drug mifepristone by blocking a 2023 rule that has allowed the medication to be prescribed via telemedicine and dispensed by mail nationwide.
Louisiana Solicitor General Ben Aguinaga urged a three-judge panel of the New Orleans-based 5th U.S. Circuit Court of Appeals to strike down the rule, arguing it undermines abortion bans implemented by his state and others after the U.S. Supreme Court in 2022 overturned the constitutional right to the procedure. Aguinaga stated that Louisiana is experiencing 1,000 abortions a month due to mifepristone mailed into the state.
Louisiana sued the U.S. Food and Drug Administration last year, arguing the agency ignored the risks of serious adverse events associated with mifepristone when it adopted the 2023 rule during the Biden administration and removed a requirement for in-person dispensing. This argument had previously swayed another 5th Circuit panel to temporarily block the rule, but the Supreme Court lifted that order in May.
U.S. Circuit Judge Stephen Higginson and U.S. Circuit Judge Dana Douglas questioned whether Louisiana had legal standing to sue, suggesting the state could not establish that abortions occurring in Louisiana were solely because of the 2023 rule. Higginson noted there were too many independent actors to attribute the monthly abortions directly to the government's safety assessment.
If the panel rules against Louisiana, the state could appeal to the Supreme Court or ask the full 5th Circuit to reconsider. Restricting mifepristone access has been a priority for Republican-led states that have banned or severely restricted abortion since the Supreme Court's ruling, leading to a surge in medication abortion, which accounts for over 60% of U.S. abortions.
U.S. District Judge David Joseph had previously paused the case pending a review by the Trump administration of mifepristone's safety, a review that the Department of Justice attorney Daniel Winik confirmed is ongoing. Abortion rights advocates have called this review politically motivated and unnecessary, with the FDA maintaining the drug's safety and effectiveness based on millions of uses and periodic reviews.
U.S. Circuit Judge Priscilla Richman, the panel's only Republican appointee, inquired about the extent of emergency room admissions and complications that might have been avoided with in-person physician visits. Lawyers for mifepristone manufacturers GenBioPro and Danco Laboratories argued the drug is safe and that the FDA adequately assessed its risks in 2023.
Discussion