Two Trump-appointed judges on the Fifth Circuit Court of Appeals decided late Wednesday that access to the abortion pill should be sharply curtailed, dealing a major blow to abortion access nationwide.
Last week, Texas federal Judge Matthew Kacsmaryk, also appointed by Donald Trump, ruled that mifepristone, one of the medications used to induce an abortion, had been improperly approved by the Food and Drug Administration and should be yanked from the U.S. market. Another judge in Washington state filed a dueling injunction the same day to keep the drug available. The Department of Justice asked the Fifth Circuit Court of Appeals Monday evening to stay the ruling while the case is appealed and the lawsuit plays out completely.
The Fifth Circuit only stayed the part of Kacsmaryk’s ruling, which was set to go into effect this Saturday, that referred to mifepristone’s initial FDA approval in 2000, saying the plaintiffs were too late to challenge that decision. In other words, the abortion pill is still available for now.
But two members of the three-judge panel, both appointed by Trump, upheld the rest of Kacsmaryk’s decision rolling back changes that had made mifepristone more easily accessible. The third judge, who was appointed by George W. Bush, wanted to stay the entire Texas ruling and keep the pill available without restrictions.
Under the appellate court ruling, mifepristone is now only available up to seven weeks of pregnancy, before many people even know they are pregnant, as opposed to 10 weeks. Retail pharmacies can no longer dispense the drug, and people cannot buy the pill online or via telemedicine. Instead, they will have to visit a physician. Nonphysicians are not allowed to prescribe or administer mifepristone.
The ruling also suspends FDA approval of the generic version of mifepristone, which would take a more affordable option off the market.
Medication abortions make up more than half of all abortions performed in the United States. These drugs can be ordered online and delivered via mail, making them a key resource for people who live in states that have cracked down on abortion access since Roe v. Wade was overturned last summer. The Fifth Circuit’s ruling is a huge blow to nationwide abortion access.
The appellate ruling also conflicts directly with the injunction out of Washington, which orders that mifepristone’s status and the means to acquire it must remain unchanged. The only way the FDA can comply with both rulings is by exercising enforcement discretion—a legal tool it can also use if the lawsuit ultimately is decided against mifepristone and abortion rights.
A bigger issue at play, though, is that nonelected judges who do not have medical backgrounds are making decisions about medication. As Rachel Rebouché, the dean of Temple University’s law school, previously told The New Republic, “The question for appellate courts is not just about abortion but about deference to a federal agency’s expertise.”
Kacsmaryk’s ruling “undermined” the FDA’s authority, she said. “To take seriously that it ignored risks, risks unsupported by any credible evidence, suggests questions as to what federal courts might decide about other federal agencies’ decisions.”
If Kacsmaryk’s complete ruling went into effect, it “would thwart FDA’s scientific judgment and severely harm women, particularly those for whom mifepristone is a medical or practical necessity,” department lawyers argued in the filing.
“This harm would be felt throughout the country, given that mifepristone has lawful uses in every State,” the filing said. “The order would undermine healthcare systems and the reliance interests of businesses and medical providers. In contrast, plaintiffs present no evidence that they will be injured at all, much less irreparably harmed, by maintaining the status quo they left unchallenged for years.”