Appeals court mulls mail-order mifepristone question

Pro-lifers argue the federal government does not need to wait for a decision to act

Key Points

• A federal appeals court is considering whether to reinstate restrictions on mailing abortion drugs, in a case brought by Louisiana and a woman who says she was pressured to take abortion pills ordered online.
• The dispute centers on the FDA’s 2023 decision to permanently allow mifepristone to be prescribed and dispensed through telehealth and mailed to women, removing the previous in-person dispensing requirement.
• Louisiana argues the FDA policy conflicts with state abortion laws and creates safety concerns. The 5th U.S. Circuit Court of Appeals previously found that the policy was causing harm to Louisiana and temporarily reinstated nationwide protections, but the Supreme Court later allowed abortion drug shipments to continue while the case proceeds.
• Safety is a major issue in the case. The FDA says about 0.5% of women taking chemical abortion pills experience serious complications, but critics point out that the agency has not reevaluated the data since the in-person requirement was removed.
• The FDA is conducting a safety review of mifepristone, but its legal counsel declined to discuss details of the review or explain the data behind the 2023 policy change during the recent hearing.
• Another concern is whether existing safeguards are being followed. A Senate committee report concluded that several abortion-drug companies may not be complying with federal requirements limiting distribution to certified prescribers and pharmacies.
• The case also raises questions about state and federal authority. The court heard arguments about whether harm resulting from mail-order abortion drugs can be attributed to the FDA when third parties, including abortion providers and states with shield laws, are also involved.
• No decision has been announced yet. The 5th Circuit has not indicated when it will rule, and the dispute could ultimately return to the U.S. Supreme Court.

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