Appeals court imposes restrictions on abortion pill, but drug will stay on the market for now
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A container holding boxes of Mifepristone, the first medication in a medical abortion, are prepared for patients at Alamo Women's Clinic in Carbondale, Illinois, April 20, 2023.
Evelyn Hockstein | Reuters
A federal appeals court on Wednesday imposed restrictions on the abortion pill mifepristone, though the ruling will not have an immediate impact.
The order by the U.S. 5th Circuit Court of Appeals is almost certain to be appealed to the Supreme Court.
Justice Samuel Alito in April preemptively paused any ruling from the appeals court pending a petition for the high court to take the case. If the Supreme Court does not take the case, the restrictions will go into effect.
Should the restrictions go in to effect, women would no longer be able to obtain the abortion by mail. Patients would have to receive a prescription from a doctor and have follow-up appointments in person.
The restrictions would also shorten the time period when women can take the pill to 49 days into their pregnancy, down from 70 days.
"In loosening mifepristone's safety restrictions, FDA failed to address several important concerns about whether the drug would be safe for the women who use it," Judge Jennifer Walker Elrod wrote. "It failed to consider the cumulative effect of removing several important safeguards at the same time."
The appeals court left the FDA's underlying 2000 approval of mifepristone and its 2019 authorization of a generic form of the drug in place.
Mifepristone, used in combination with another drug called misoprostol, is the most common method to terminate a pregnancy in the U.S.
The court battle over mifepristone comes more than a year after the Supreme Court abolished federal abortion rights by overturning the landmark 1973 Roe v. Wade ruling.
The ruling Wednesday comes nearly three months after Elrod an two fellow judges at the 5th Circuit heard arguments from the Food and Drug Administration, mifepristone distributor Danco Laboratories, and a group of anti-abortion doctors called the Alliance for Hippocratic Medicine.
The judges were all appointed by Republican presidents. Judges James Ho and Cory Wilson were appointed by Donald Trump. Elrod was appointed by George W. Bush.
The FDA and Danco argued that the lawsuit seeking to pull mifepristone from the U.S. market is unprecedented, has no basis in science and will jeopardize women's health.
The panel of judges pushed back hard on those arguments.
The judges questioned whether allowing women to receive mifepristone by mail without having to see a doctor would result in more patients seeking emergency care. Ho pushed back on the FDA and Danco's characterization of the case as unprecedented.
"I don't understand this theme — the FDA can do no wrong. That is basically the narrative you all are putting forth — nobody should ever question the FDA," Ho said during Wednesday's hearing.
"We are allowed to look at the FDA just like we are allowed to look at any agency, that's the role of the courts," Ho said.
This is breaking news. Please check back for updates.
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