Arguments on Landmark Abortion Pill Case to be Heard in Appeals Court
The lawsuit over access to the abortion pill goes before the 5th Circuit Court of Appeals in New Orleans on Wednesday, the next step on a path that will likely end at the U.S. Supreme Court. The 5th Circuit Court of Appeals is scheduled to hear arguments in the appeal on Wednesday at 1 p.m. Central.
Overview of Mifepristone and Medication Abortion
Mifepristone blocks a hormone called progesterone that is needed for a pregnancy to continue, and it’s one of two drugs used in a medication abortion. According to research by the Guttmacher Institute, medical abortions make up more than half of abortions in the U.S. The three-judge panel will decide whether to keep, overturn, or alter a ruling from U.S. District Court from the Northern District of Texas Judge Matthew Kacsmaryk, who sought to end the prescription medication’s approval in an early April ruling.
The Legal Challenge: Alliance Hippocratic Medicine v. FDA
The case, Alliance Hippocratic Medicine v. FDA, began in November when anti-abortion groups filed a suit challenging the U.S. Food and Drug Administration’s approval of mifepristone in 2000. The anti-abortion organizations called on a federal judge to overturn the approval, removing mifepristone from the market, though they also challenged changes to how the medication is prescribed and used following changes at the federal level in 2016 and 2021.
Alliance Defending Freedom, the anti-abortion legal organization that filed the lawsuit, wrote in its brief to the 5th Circuit Court of Appeals that the FDA erred when it approved mifepristone. ADF attorneys claim that mifepristone is not safe and effective for pregnancy termination, rejecting the scientific studies cited by medical organizations that show otherwise. Their legal team also opposes changes the FDA made to mifepristone’s use and administration. These modifications are summarized in the table below:
| Year of Change | Key Regulatory Modifications |
|---|---|
| 2016 | Medication could be used up to 10 weeks into a pregnancy (increase from seven weeks); reduced in-person visits from three to one; allowed qualified health care providers to prescribe the medication; and changed dosage/timing instructions. |
| 2021 | The FDA began allowing mifepristone to be prescribed via telehealth and sent to patients through the mail. |
In sum, ADF wrote in a 90-page brief: “FDA has eliminated all safeguards that gave abortion providers the opportunity to rule out ectopic pregnancies, verify gestational age, and identify any contraindications to prescribing mifepristone.”
Arguments from the Medical Community
More than a dozen medical organizations — including the American College of Obstetricians and Gynecologists, the Society for Maternal-Fetal Medicine and the American Society for Reproductive Medicine — argued in support of access to mifepristone in a brief to the appeals court. The medical organizations wrote that their “ability to effectively care for patients often requires access to mifepristone, which has undergone rigorous testing and review and has been approved for use in the United States for over 20 years.”
The 13 medical organizations wrote that the Texas district judge’s ruling “is rife with medically inappropriate assumptions and terminology.” They further stated that the ruling “disregards decades of unambiguous analysis supporting the use of mifepristone in miscarriage and abortion care” and “relies on pseudoscience and on speculation.”
The Appeals Panel
The appeals panel deciding the case will include Judges Jennifer Walker Elrod, James C. Ho and Cory T. Wilson. Elrod was nominated by former President George W. Bush in 2007 and confirmed by the Senate on a voice vote. Ho and Wilson were nominated by former President Donald Trump and were confirmed by the Senate on mostly party-line votes.