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Federal appeals court ruling deals a blow to access to abortion pill mifepristone


A federal appeals court issued a ruling on the abortion medication mifepristone yesterday.


The FDA approved mifepristone 23 years ago, and today it's widely used. Medication abortions account for about half of all abortions in the U.S. And for now, mifepristone is still available any place abortion is legal, but Wednesday's ruling sets the stage for the Supreme Court to weigh in on that.

MARTIN: NPR's Selena Simmons-Duffin is covering this story, and she's with us now to tell us more. Good morning.


MARTIN: So tell us what this ruling does, broadly.

SIMMONS-DUFFIN: So a panel of judges at the 5th Circuit Court of Appeals in New Orleans decided that mifepristone should still have FDA approval, but it should be much harder to access. So as a reminder, this case came out of Texas from several medical groups and doctors that oppose abortion. They challenged the Food and Drug Administration's approval of mifepristone and the changes it made later to how the medicine is prescribed. So on Wednesday, this appeals court agreed with those challengers in part and said the FDA should never have made it easier to prescribe mifepristone. Nothing changes yet, though, because the Supreme Court ruled in April that access to mifepristone must remain the same until it gets a chance to weigh in.

MARTIN: So when could that happen, and what could change at that point?

SIMMONS-DUFFIN: The Supreme Court could hear oral arguments in this case as soon as this fall. Its decision could be different than this appeals court ruling. But if it's the same, access to this drug would change dramatically. So under yesterday's ruling, access would essentially be rolled back to before 2016, when doctors needed to prescribe this medication in person and there were other restrictions. Here's how Greer Donley put it. She is a health law professor at the University of Pittsburgh.

GREER DONLEY: It would cause pretty significant changes to the status quo in terms of how pills are accessed in this country.

SIMMONS-DUFFIN: Changes like no more telehealth appointments for mifepristone and no access after those very first few weeks of pregnancy. And this would be nationwide, so the ruling would reach out into states that have been working to protect access to abortion and change things for patients and doctors in those states, too.

MARTIN: Was this ruling expected, or is it a surprise?

SIMMONS-DUFFIN: It was definitely not a surprise. This was a panel of three judges. They were all appointed by Republican presidents. Two were appointed by former President Trump. In the hearing, they really hammered attorneys for the FDA and Danco, which is the pharmaceutical company behind mifepristone. The Alliance Defending Freedom, which is representing the plaintiffs in this case, was thrilled by the ruling and called it a significant victory. The Department of Justice released a statement saying it strongly disagrees with the decision and will be seeking Supreme Court review.

MARTIN: And, of course, this is the same court - the same Supreme Court that overturned Roe v. Wade last year. What is our expectation about how they're going to respond to this ruling?

SIMMONS-DUFFIN: I mean, we will have to wait and see what happens. But many legal experts say this case has some weaknesses, especially when it comes to the plaintiffs' argument that they have standing to sue. So Mary Ziegler is a law professor at UC Davis who's written books about the history of abortion.

MARY ZIEGLER: My impression is that this is the 5th Circuit trying to resurrect what had been a pretty flawed case in the hope that this Supreme Court is conservative enough that there's no case too weak or extreme, really, for this court on abortion.

MARTIN: I think many people will remember there was a separate federal case on mifepristone which was led by Democratic states. Where is that now?

SIMMONS-DUFFIN: Yeah. So a federal judge in Washington state agreed with the challengers, who said that the FDA was being too restrictive when it came to mifepristone. And Zeigler says these conflicting lower-court rulings makes it more likely the Supreme Court will take this up, so that's what will likely happen next.

MARTIN: That's NPR's Selena Simmons-Duffin. Selena, thank you.

SIMMONS-DUFFIN: Thank you. Transcript provided by NPR, Copyright NPR.

NPR transcripts are created on a rush deadline by an NPR contractor. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.

Michel Martin is the weekend host of All Things Considered, where she draws on her deep reporting and interviewing experience to dig in to the week's news. Outside the studio, she has also hosted "Michel Martin: Going There," an ambitious live event series in collaboration with Member Stations.
Selena Simmons-Duffin reports on health policy for NPR.