An appeals court backs some abortion drug limits, pending the Supreme Court’s approval

NEW ORLEANS — Mail-order access to a drug used in the most common form of abortion in the U.S. would end under a federal appeals court ruling issued Wednesday that cannot take effect until the Supreme Court weighs in.

The decision by three judges on the 5th U.S. Circuit Court of Appeals in New Orleans overturned part of a lower court ruling that would have revoked the Food and Drug Administration’s 23-year-old approval of mifepristone. But it left intact part of the ruling that would end the availability of the drug by mail, allow it to be used through only the seventh week of pregnancy rather than the 10th, and require that it be administered in the presence of a physician.

Those restrictions won’t take effect right away because the Supreme Court previously intervened to keep the drug available during the legal fight.

The panel’s ruling would reverse changes the FDA made in 2016 and 2021 that eased some conditions for administering the drug.

“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 for the panel. She was joined by Judge Cory Wilson. Judge James Ho dissented, arguing to fully uphold a Texas-based federal judge’s April ruling that would revoke the drug’s approval, which the FDA granted in 2000.

President Joe Biden’s administration said it would appeal, with Vice President Kamala Harris decrying the potential effect on abortion rights, as well as on the availability of other medications.

“It endangers our entire system of drug approval and regulation by undermining the independent, expert judgment of the FDA,” Harris’ statement said.

Abortion rights advocates said the ruling poses a major threat to abortion availability following last year’s Supreme Court ruling that overturned Roe v. Wade and the nationwide right to abortion.

“If the Supreme Court affirms this decision, it will prevent patients from receiving their medication in the mail in all 50 states in the nation,” Jennifer Dalven of the American Civil Liberties Union said during an online news conference. “That means that patients will have to travel often hundreds of miles, especially if they’re coming from a state that has banned abortion, for the sole purpose of picking up a pill.”