Forgot Your Password?

New to The Nation? Subscribe

Print subscriber? Activate your online access

.nation-small__b{fill:#fff;}

The Fifth Circuit Seeks to Unilaterally Reimpose an Outdated Abortion Pill Protocol

What comes next is shifting terrain. The drug manufacturer has asked the Supreme Court to intervene, but the Food and Drug Administration could also step in.

On Friday night, the US Court of Appeals for the Fifth Circuit issued an 18-page order that winds back the clock to 2016. The order reimposes a restriction on mifepristone, the first part of a two-drug regimen to end a pregnancy, that requires patients pick up the pill at a healthcare facility—in effect, banning the use of telehealth for medication abortion nationwide, at least temporarily.

Telehealth abortion—in which a provider, patient, and pharmacy all interact online and pills are mailed to patients—accounts for more than a quarter of all abortions and has been growing in popularity since the Covid-19 pandemic and the US Supreme Court overturned Roe v. Wade. Since the Dobbs v. Jackson Women’s Health Organization decision in 2022, patients in states with abortion bans have been receiving the medication by mail from providers in states where abortion remains legal, who operate according to their own state’s laws. But as telehealth abortion and medication abortions broadly became more widely used, anti-abortion activists have deployed a variety of tactics to threaten the legality of and access to the medication. Louisiana v. FDA, the lawsuit before the Fifth Circuit, marked the latest attempt, but certainly not the first or last, to challenge telehealth abortion.

Louisiana brought the lawsuit against the Food and Drug Administration in October of last year, arguing that the agency acted unlawfully when, practically in 2021 and officially in 2023, it lifted a restriction on mifepristone that required patients to pick up the medication at a clinic, although patients did not have to take mifepristone in a provider’s presence. The rule changed in the wake of litigation during Covid-19 and on the back of extensive research establishing the safety of telehealth for medication abortion.

Prior to Louisiana’s lawsuit, a group of anti-abortion doctors pursued the same outcome, in addition to asking the FDA to remove its 2000 approval of the drug. Those doctors, suing as the Alliance for Hippocratic Medicine, lost before the Supreme Court in 2024; a unanimous court held that they did not have standing, or could not prove an actual injury from the FDA’s rule. Anticipating the Supreme Court’s decision, other states—Missouri, Kansas, and Idaho—intervened in........

© The Nation