A federal appeals court Wednesday ruled the abortion pill mifepristone could still be dispensed up to seven weeks of pregnancy, but the panel blocked its delivery through the mail — for now.
The move limited a lower court ruling that had said the Food and Drug Administration could not distribute the pill, which is used as the most common method of abortion in the United States.
The three-judge panel’s move is temporary, as the case continues to work its way through the courts. The court ordered oral arguments to be scheduled, though a date has not been set on the docket.
Either side could take the ruling to the Supreme Court.
“What we can say is we’re going to continue to fight. We’re going to promise to do that for Americans across the country, and we believe we will prevail because we believe that the law is on our side,” White House press secretary Karine Jean-Pierre told reporters Thursday as they traveled with President Biden in Ireland.
Mifepristone had been approved by the FDA during the Clinton administration and is used with misoprostol to terminate a pregnancy.
The appeals court panel said the challenge to the FDA approval in 2000 was untimely, but recognized other challenges to the drug.
Judge Matthew J. Kacsmaryk, a Trump appointee, had ruled last week the FDA could not continue to approve the pill in a case brought by pro-life advocates and physicians that argued women have had grave health consequences from using the pill.
Just before midnight on Wednesday, the 5th U.S. Circuit Court of Appeals disagreed in a 2-1 ruling.
Two of the judges, Judge Kurt Engelhardt and Judge Andrew Oldham, were Trump appointees. Judge Catharina Haynes, a Bush appointee, said she would expedite the case for oral arguments but put the lower court block on hold entirely.
The court’s ruling said the drug could still be dispensed — but not through the mail as regulators had begun to allow in 2016, and only up to seven weeks of pregnancy, not 10 weeks.
“Mifepristone users who present themselves to the plaintiffs have required blood transfusions, overnight hospitalization, intensive care, and even surgical abortions,” the court wrote in its ruling. “As a result of FDA’s failure to regulate this potent drug, these doctors have had to devote significant time and resources to caring for women experiencing mifepristone’s harmful effects.”
The drug was originally approved in 2000 for up to seven weeks of pregnancy.
But it was not sent through the mail. It required three steps: first a visit with a doctor to receive the mifepristone, and then another one to get the misoprostol. There was also routinely a third visit for a follow-up with a doctor to address complications, according to The Associated Press.
If the appeals court order remains in place, these three steps would be required for the abortion pill to be given.
Ms. Jean-Pierre also pointed to a proposed rule from the Department of Health and Human Services on Wednesday that says patients’ medical records cannot be used against them or their doctors in places where abortions have been “criminalized” due to the Supreme Court decision that overturned the broad right to abortion in Roe v. Wade.
“We are taking this very seriously,” she said. “We’re laying out how we’re going to move forward.”
• Tom Howell Jr. contributed to this story.
• Alex Swoyer can be reached at aswoyer@washingtontimes.com.
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