Federal appellate panel blocks part of expansive abortion pill ban, allows some restrictions to take effect
A three-judge panel of the conservative U.S. 5th Circuit Court of Appeals ruled late Wednesday that the abortion medication mifepristone will remain on the market while the Justice Department appeals a decision by a federal judge in Texas that would have withdrawn FDA approval for the drug entirely. The FDA gave mifepristone the green light in 2000, and the appellate judges agreed that the six-year statute of limitations prevented overturning the original authorization.
But in the 2-1 decision, the panel said the easing of restrictions the FDA and Biden administration have enacted since 2016 will remain blocked under U.S District Judge Matthew Kacsmaryk's sweeping ruling. That means mifepristone can only be prescribed by a doctor, must be used only up to seven weeks of pregnancy instead of 10, entails three in-person doctors' visits, and cannot be dispensed through the mail, among other limits.
The two judges in the majority, Kurt Engelhardt and Andrew Oldham, were, like Kacsmaryk, nominated by former President Donald Trump. Judge Catharina Haynes, a George W. Bush appointee, would have put Kacsmaryk's entire ruling on hold.
"Mifepristone has been used by millions of women over the past 23 years, and complications from mifepristone occur at a lower rate than problems in wisdom teeth removal, colonoscopies, and other routine procedures," The Associated Press reports, citing major medical organizations. The combination of mifepristone and misoprostol is the most common method of abortion in the U.S., and has become more widely used since the Supreme Court struck down Roe v. Wade last summer.
The Justice Department has asked a federal judge in Washington State to explain how his dueling ruling, barring the FDA from changing its rules on mifepristone in 17 states and Washington, D.C., fits in with Kacsmaryk's ruling. The Biden administration and the anti-abortion group that persuaded Kacsmaryk to overrule the FDA can both appeal to the Supreme Court, one to strike down the entire ruling and the other to uphold all of it. White House Press Secretary Karine Jean-Pierre said early Thursday that the Biden administration will "continue to fight in the courts. We believe that the law is on our side and we will prevail."