Federal appeals court in New Orleans begins hearing arguments on fate of abortion pill

by Jacob Fuller

U.S. appeals court judges began hearing arguments on Wednesday in a legal battle over the availability of the abortion pill mifepristone, with potentially far-reaching consequences for abortion access across the United States.

Lawyers for the federal government are urging a three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans to overturn last month’s unprecedented ruling by U.S. District Judge Matthew Kacsmaryk in Amarillo, Texas suspending mifepristone’s approval.

Danco Laboratories, which sells the drug under the brand name Mifeprex, is also expected to argue before the court.

The administration of President Joe Biden is seeking to defend mifepristone in the face of mounting abortion bans and restrictions enacted by Republican-led states since the U.S. Supreme Court in June overturned the landmark 1973 Roe v. Wade decision that had legalized the procedure nationwide.

Pro-life groups and doctors, led by the recently formed Alliance for Hippocratic Medicine, will be defending Kacsmaryk’s order. They claimed in their lawsuit last year that mifepristone is unsafe and that the U.S. Food and Drug Administration’s approval, almost 23 years ago, was illegal.

The administration is expected to argue that the plaintiffs have no standing to bring the case because they are not harmed by mifepristone’s approval, and that the drug’s safety is supported by decades of data and real-world use.

By filing their case in Amarillo, the plaintiffs assured it would go before Kacsmaryk, a conservative and former Christian activist, and that any appeal would go to the conservative 5th Circuit. Twelve of the circuit’s 16 active judges were appointed by Republican presidents.

All three judges on Wednesday’s panel are staunchly conservative, with a history of opposing abortion rights.

Mifepristone remains available for now, following an emergency order from the U.S. Supreme Court putting Kacsmaryk’s order on hold during the appeal.

Mifepristone is part of a two-drug regimen with misoprostol used for medication abortions, which account for more than half of U.S. abortions. It is approved for use in the first 10 weeks of pregnancy.

Whichever way the 5th Circuit panel rules, the decision is sure to be appealed, first to the full court and then to the U.S. Supreme Court.

Copyright 2023 Thompson/Reuters