Abortion pill case moves to appeals court, on track for Supreme Court

FILE – Boxes containing the drug mifepristone are displayed on a shelf in the West Alabama Women's Center, Tuscaloosa (Ala.), on March 16, 2022. On Wednesday, May 17 2023, legal arguments regarding women's access of a drug that is used to perform the most common form of abortion will be heard in New Orleans by a federal court. The case challenges a Food and Drug Administration ruling made over two decades ago.

Allen G. Breed/AP

NEW ORLEANS, LA (AP) - Legal arguments about women's accessing a drug that is used in the most popular method of abortion are being heard by a federal appellate court in New Orleans today. The case challenges a Food and Drug Administration ruling made over two decades ago.

The Supreme Court is expected to decide the case, as it has already intervened in order to maintain the availability of the drug mifepristone while the legal battle winds its way through the courts.

Three judges of the 5th U.S. Three judges from the 5th U.S. The FDA's initial approval for mifepristone was in 2000. FDA actions in subsequent years to make the drug more available are at issue. The judges will not rule immediately.

The case is being argued nearly a year after Supreme Court ruled that Roe v. Wade, which established abortion rights, was overturned. Judges appointed by the former president Donald Trump to the district and appeals courts are playing a major role in this case. Since then, 14 states have banned abortions at any stage of pregnancy, and others have adopted or are considering major restrictions.

In November, Texas abortion opponents filed a suit in Amarillo federal court, which is presided over by U.S. district judge Matthew Kacsmaryk. Kacsmaryk was a Trump nominee. Kacsmaryk ruled on April 7, rescinding FDA approval for mifepristone, in response to a Texas lawsuit filed by abortion opponents following the Supreme Court's decision to reverse Roe v. Wade. The Biden Administration and Danco Laboratories appealed quickly to the 5th Circuit in order to stay Kacsmaryk’s ruling.

A panel of appeals voted by a margin of 2-1 in favor narrowing, but not blocking, Kacsmaryk’s ruling. In their April 13 decision, they said abortion opponents were prevented from contesting the initial approval of 2000 by time limitations. The panel said that the restrictions on sending the drug and the rules for physician visits could remain in place.

The Supreme Court then put lower court decisions on hold while they appealed, ensuring that mifepristone will remain available at least until next year.

James Ho, Cory Wilson (both Trump nominees) and Jennifer Walker Elrod (a George W. Bush nomination) are handling the case for now. With 17 judges currently active, the 5th Circuit is dominated by Republican nominees.

Since the FDA approved mifepristone, it has been possible to obtain it by mail. The FDA also reduced the dose needed to end a pregnancy safely, removed the requirement of visiting a doctor to get the medication, and eliminated the need to see a doctor to receive it.

Mifepristone and misoprostol are the two pills that are used to induce abortions. The health care providers said that they would switch to misoprostol in the event that mifepristone was no longer available, or too difficult to obtain. Misoprostol has a slightly lower effectiveness in terminating pregnancies.