A federal appeals court ruled just before midnight on Wednesday that the abortion pill mifepristone can still be used for now but reduced the period of pregnancy when the drug can be taken and said it could not be dispensed by mail.
The decision temporarily narrowed a ruling by a lower court judge in Texas that had completely blocked the Food and Drug Administration’s approval of the nation’s most commonly used method of abortion. Still, preventing the pill from being sent by mail amounts to another significant curtailing of abortion access — less than a year after the reversal of Roe v. Wade resulted in more than a dozen states effectively banning abortion outright.
In a statement Thursday morning, Attorney General Merrick Garland said that the Justice Department will appeal the ruling to the Supreme Court.
“The Justice Department strongly disagrees with the Fifth Circuit’s decision in Alliance for Hippocratic Medicine v. FDA to deny in part our request for a stay pending appeal," Garland wrote in a statement. "We will be seeking emergency relief from the Supreme Court to defend the FDA’s scientific judgment and protect Americans’ access to safe and effective reproductive care.”
“We are going to continue to fight in the courts, we believe the law is on our side, and we will prevail,” White House Press Secretary Karine Jean-Pierre said Thursday, speaking to reporters from Dublin during a visit by President Joe Biden.
Mifepristone was approved for use by the FDA more than two decades ago and is used in combination with a second drug, misoprostol.
In a far-reaching ruling last week, a federal judge blocked the FDA’s approval of the pill following a lawsuit by the drug's opponents. There is virtually no precedent for a lone judge overturning the regulator's medical decisions.
The ruling was put on pause to allow an appeal.
Just before midnight Wednesday, the 5th U.S. Circuit Court of Appeals in New Orleans ruled that the FDA’s initial approval of mifepristone in 2000 could remain in effect.
But in the 2-1 vote, the panel of judges put on hold changes made by the regulator since 2016 that relaxed the rules for prescribing and dispensing mifepristone. Those included extending the period of pregnancy when the drug can be used from seven weeks to 10, and also allowing it to be dispensed by mail, without any need to visit a doctor’s office.
The lawsuit challenging the drug’s approval was brought by the Alliance Defending Freedom, which was also involved in the case that overturned Roe v. Wade. It cheered the decision by the appellate panel.
“The 5th Circuit’s decision is a significant victory for the doctors we represent, women’s health, and every American who deserves an accountable federal government acting within the bounds of the law,” said Erin Hawley, an attorney for the group.
The two judges who voted to tighten restrictions, Kurt Engelhardt and Andrew Oldham, are both appointees of former President Donald Trump. The third judge, Catharina Haynes, is an appointee of former President George W. Bush. She said she would have put the lower court ruling on hold entirely for now to allow oral arguments in the case.
Either side, or both, could take the case to the Supreme Court. Opponents of the drug could seek to keep the full lower court ruling in effect. The Biden administration, meanwhile, could ask the high court to allow all the FDA changes to remain in place while the case continues to play out.
Adding to the uncertainty, a separate federal judge in Washington last week ordered the FDA not to do anything that might block mifepristone’s availability in 17 Democrat-led states suing to keep it on the market. The judge in that case has not yet to responded to the Justice Department seeking additional clarity this week.
The appeals court judges in the majority in Wednesday's decision noted that the Biden administration and mifepristone’s manufacturer “warn us of significant public consequences” that would result if mifepristone were withdrawn entirely from the market under the lower court ruling.
But the judges suggested changes the FDA made making mifepristone easier to obtain since 2016 were less consequential than its initial approval of the drug in 2000. It would be “difficult” to argue the changes were “so critical to the public given that the nation operated — and mifepristone was administered to millions of women — without them for sixteen years” the judges wrote.
When the drug was initially approved in 2000, the FDA limited its use to up to seven weeks of pregnancy. It also required three in-person office visits: the first to administer mifepristone, the next to administer the second drug misoprostol and the third to address any complications. It also required a doctor’s supervision and a reporting system for any serious consequences associated with the drug.
If the appeals court's action stands, those would again be the terms under which mifepristone could be dispensed for now.
Democratic leaders in states where abortion remains legal since the Supreme Court overturned Roe v. Wade last year say they are preparing in case mifepristone becomes restricted.
New York Gov. Kathy Hochul said Tuesday that her state would stockpile 150,000 doses of misoprostol.
The White House also has contingency plans in place, but Jean-Pierre held off on detailing them while the legal action continued. Instead, she detailed a proposed a new federal rule to limit how law enforcement and state officials collect medical records if they investigate women who flee their home states to seek abortions elsewhere.
Pharmaceutical executives this week also signed a letter that condemned the Texas ruling and warned that FDA approval of other drugs could be at risk if U.S. District Judge Matthew Kacsmaryk’s decision stands.
At the core of the Texas lawsuit is the allegation that the FDA’s initial approval of mifepristone was flawed because the agency did not adequately review safety risks.
Mifepristone has been used by millions of women over the past 23 years. While less drastic than completely overturning the drug's approval, the latest ruling still represents a stark challenge to the FDA’s authority overseeing how prescription drugs are used in the U.S. The panel overturned multiple decisions made by FDA regulators following years of scientific review.
Common drug side effects with mifepristone include cramping, bleeding, nausea, headache and diarrhea. In rare cases, women can experience excess bleeding that requires a surgical procedure to stop.
Still, in loosening restrictions on mifepristone, FDA regulators cited “exceedingly low rates of serious adverse events,” with the drug.
More than 5.6 million women in the U.S. had used the drug as of June 2022, according to the FDA. In that period, the agency received 4,200 reports of complications in women, or less than one tenth of 1% of women who took the drug.