By Nate Raymond
Sept 9 (Reuters) – A U.S. appeals court on Wednesday appeared skeptical of a bid by the Republican-led state of Louisiana 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.
“There’s no dispute that Louisiana is experiencing 1,000 abortions a month due to mifepristone mailed into the state,” Aguinaga said.
Louisiana sued the U.S. Food and Drug Administration last year, arguing the agency ignored the risks of serious adverse events associated with mifepristone, including sepsis and hemorrhaging, when it adopted the 2023 rule during former Democratic President Joe Biden’s administration and removed a requirement that the drug be dispensed in person at a medical facility.
BACK BEFORE THE 5TH CIRCUIT
That argument previously swayed another 5th Circuit panel earlier this year to temporarily block the rule. But the Supreme Court in May lifted that order, allowing the drug to continue to be prescribed through telemedicine and dispensed by mail, a fact that U.S. Circuit Judge Stephen Higginson noted repeatedly.
The judge noted that his court, one of the most conservative in the nation, had previously also been reversed by the Supreme Court in 2024 when it unanimously rejected a different bid by anti-abortion groups and doctors to roll back FDA regulations that had eased access to the drug.
Both he and U.S. Circuit Judge Dana Douglas, a fellow appointee of a Democratic president, questioned whether Louisiana even had legal standing to sue over the FDA’s action, saying it could not establish that the abortions occurring in the state were because of the 2023 rule as opposed to other factors.
“There are too many independent actors to say that actually the government’s assessment of safety is what’s causing your 1,000 abortions a month,” Higginson said.
Should the panel rule against Louisiana, the state could either appeal to the Supreme Court or ask the full 5th Circuit, which has a supermajority of Republican appointees, to reconsider the case, one of several pending challenging the regulation.
Restricting access to mifepristone, including its availability through telehealth appointments with out-of-state providers, has been a top priority for Republican-led states that implemented abortion bans.
Nearly half of U.S. states have banned or severely restricted abortion since the Supreme Court’s ruling, leading to a surge in medication abortion, a two-drug regimen consisting of mifepristone followed by misoprostol.
Medication abortion accounts for more than 60% of U.S. abortions, according to data from the Guttmacher Institute, an abortion rights advocacy group.
U.S. District Judge David Joseph in April paused the case pending a review by President Donald Trump’s administration of the safety of mifepristone.
Abortion rights advocates have said the Trump administration’s review is politically motivated and unnecessary. The FDA, which approved mifepristone in 2000, calls the drug that has been used by millions of American women safe and effective, saying its periodic reviews have not identified any new safety concerns.
FDA REVIEW ONGOING
U.S. Department of Justice attorney Daniel Winik said that review remains ongoing. He said he had “no idea” what action the FDA may ultimately take but that the matter should be left to the agency to decide.
“The whole point of our position in this case is that it’s the FDA’s job in the ongoing consideration of mifepristone to address all of these issues,” he said.
The 5th Circuit panel’s only Republican appointee, U.S. Circuit Judge Priscilla Richman, asked repeatedly about the extent to which women were being admitted to emergency rooms more frequently and “how many of those complications would not have occurred had the woman seen a physician in person.”
But lawyers for the drugmakers GenBioPro and Danco Laboratories, which manufacture mifepristone, called the drug safe and argued the FDA in 2023 adequately assessed the drug’s risks.
“The FDA’s decision was richly supported,” GenBioPro lawyer John Elwood said.
(Reporting by Nate Raymond in Boston, Editing by Alexia Garamfalvi and Bill Berkrot)
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