Appeals Court rules to keep abortion pill on market, but with limitations

August 16, 2023

The conservative 5th Circuit Court of Appeals on Wednesday erased a lower court’s ruling that would have taken the abortion pill mifepristone off the market, though it upheld some limitations on its access.

The Circuit Court’s three-judge panel’s ruling will not impact current availability to the drug, as the Supreme Court has already ruled that it may remain on the market while legal battles play out. 

The pill mifepristone can be used along with another medication, misoprostol, to end a pregnancy. The Food and Drug Administration approved mifepristone more than 20 years ago. Currently about half of all abortions in the U.S. are medication abortion.

A group of doctors who oppose abortion asked the Supreme Court in April to keep a lower court’s restriction on mifepristone in place, asserting that the FDA had not done enough to study the safety of the drug before approving it.

Their argument countered that of 400 pharmaceutical company executives who said Texas judge Matthew  Kacsmaryk’s ruling ignored both scientific and legal precedent. 

Just moments after Kacsmaryk had imposed a initial nationwide injunction upon Mifepristone on April 7, Judge Thomas Rice in Washington state blocked the FDA from from making any changes to its access in the 17 states and DC that had brought suit against pulling the drug off the market.

While Rice’s ruling only impacted DC and those suing states, he said a nationwide injunction was “inappropriate.”

The 5th Circuit Court’s ruling Wednesday reversed Kacsmaryk’s ruling, but the three-judge panel did agree with the Texas judge’s opinion that it was it was likely unlawful for the government to make more recent changes to the drug’s regulations that made it easier to obtain.

In January the FDA said it would allow retail drugstores like CVS and Walgreens to offer customers the prescription abortion pills.

The legal battle over mifepristone arose less than a year after its conservative supermajority on the Supreme Court ruled 6-3 to overturn Roe v Wade and 50 years of the Constitutional right to abortion on June 24, 2022.

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