Appeals court keeps abortion drug on the market, with some limits

Late-night order halts the most controversial part of a lower court ruling about FDA approval of mifepristone

Mifepristone, one of the two drugs used in a medication abortion, is displayed at a reproductive clinic. (Robyn Beck/AFP via Getty Images)
Mifepristone, one of the two drugs used in a medication abortion, is displayed at a reproductive clinic. (Robyn Beck/AFP via Getty Images)
Posted April 13, 2023 at 9:17am, Updated at 12:48pm

A federal appeals court allowed the nation’s most-used medication abortion drug to remain on the market after Saturday, in a complicated ruling that would still put new limits on when and how mifepristone is available.

The U.S. Court of Appeals for the 5th Circuit late Wednesday put a hold on the most contentious part of a lower court ruling, which would have suspended the Food and Drug Administration’s 2000 approval of mifepristone.

But the 5th Circuit order did not stop parts of the ruling about FDA revisions to that approval in 2016 and 2021, which means mifepristone would no longer be approved for abortion between seven and 10 weeks of pregnancy or for distribution by mail. Without intervention, the original ruling to ban mifepristone outright would've gone into effect Saturday.

[Members of Congress weigh in on court fight over abortion drug]

Attorney General Merrick Garland announced Thursday that DOJ would appeal the 5th Circuit's decision.

“The Justice Department strongly disagrees with the Fifth Circuit’s decision in Alliance for Hippocratic Medicine v. FDA to deny in part our request for a stay pending appeal. We will be seeking emergency relief from the Supreme Court to defend the FDA’s scientific judgment and protect Americans’ access to safe and effective reproductive care," said Garland in a statement.

Alliance Defending Freedom, a conservative legal advocacy group representing the plaintiffs, said the 5th Circuit’s order helped hold a federal agency accountable.

“The 5th Circuit’s decision is a significant victory for the doctors we represent, women’s health, and every American who deserves an accountable federal government acting within the bounds of the law,” ADF senior counsel Erin Hawley said.

Abortion rights advocates said the stay in part was still a significant burden.

“We’re relieved that the FDA’s approval of mifepristone stands for now, but by reinstating outdated and unnecessary restrictions, these judges — many of whom were appointed by a twice-impeached now-indicted former president — put tens of millions of people’s health at risk,” NARAL Pro-Choice America President Mini Timmaraju said in a statement.

Kirsten Moore, director of the Expanding Medication Abortion Access Project, said by rolling back the 2016 and 2021 changes to the drug it would still be “forcing people to go back to picking up their medications in person, essentially eliminating teleheath access and forcing people to travel, in some cases hundreds of miles, just to receive care.”

Earlier Thursday, Senate Appropriations Chair Patty Murray, D-Wash., and House Energy and Commerce ranking member Frank Pallone Jr., criticized the 5th Circuit Court decision, with Pallone saying the Texas decision would cast the nation's drug approval process "into chaos."

Vice President Kamala Harris, meanwhile, called the lawsuit "the next step to a nationwide abortion ban."

"The decision severely limits access to mifepristone, standing between doctors and their patients," she said, adding she and President Joe Biden "remain firmly committed to protecting access to medication abortion."