Abortion Pill Can Stay on Market — With a Catch

The Fifth Circuit Court of Appeals decided late on Wednesday that the abortion pill Mifepristone can stay on the market, partially reversing Texas Judge Matthew Kacsmaryk’s ruling last week banning it nationwide.

The three-judge panel on the federal appeals court stipulated, however, that the drug cannot be sent through the mail, while block some moves the Food and Drug Administration has made to make it easier to access the drug.

The ruling comes two days after the Justice Department asked the court to freeze the implementation of the ban, arguing that too much time had passed since the FDA first approved Mifepristone for abortion opponents to challenge the decision. ”Today’s decision overturns the FDA’s expert judgment, rendered over two decades ago, that mifepristone is safe and effective. The Department will continue to defend the FDA’s decision,” Attorney General Merrick Garland said after Kacsmaryk ruled last Friday.

The Fifth Circuit agreed, but reversed some actions the FDA has taken in recent years. The FDA in 2016, or instance, expanded its approval of mifepristone to be used within 7 weeks of pregnancy to 10 weeks. The court overturned that expansion on Wednesday. The FDA more recently removed an in-person dispensing requirement for the drug, allowing it to be prescribed by tele-health and mailed to users. The court overturned that measure, as well.

The Justice Department is expected to appeal the Fifth Circuit’s ruling to the Supreme Court, and the plaintiffs in the case Kacsmaryk decided on Friday could appeal to keep mifepristone off the market.

Millions of Americans have used Mifepristone and its companion drug to terminate pregnancies, and over half of abortions in the U.S. last year were medicated abortions. Anti-abortion activists worked to get the case in front of Kacsmaryk, a far-right, former religious liberty lawyer installed by former President Donald Trump. They were rewarded with the ruling on Friday, which sparked outrage among defenders of women’s right to health care. Some Democratic states moved to stockpile the drug, while some lawmakers have encouraged the Biden administration to simply ignore the decision. Kamara Jones, a spokeswoman for the Department of Health and Human Services, responded on Twitter by arguing ignoring the ruling would set a “dangerous precedent.”

“We are confident that the law is on our side, and DOJ has announced that it will request a stay pending appeal to allow mifepristone to remain on the market,” she added. “There is a process in place for appealing this decision and we will do everything we can to prevail in the courts.”