Leading abortion drug mifepristone will remain available for now, but will not be allowed to be sent to patients by mail, and can only be used up to seven weeks of Pregnancy, instead of ten, a federal appeals court ruled overnight Wednesday in a partial — and temporary — victory for the Biden administration. The future of the drug’s availability remains in legal limbo.
The United States Fifth Circuit Court of Appeals, a conservative three-judge panel, said its ruling would stay in place until the case was heard by the court. The case reached the appeals court after Donald Trump-appointed Texas federal Judge Matthew Kacsmaryk ruled last Friday to strip mifepristone, which alongside misoprostol is used in more than half of all abortions performed in the US, of its Food and Drug Administration approval, first issued in 2000. Kacsmaryk gave the Biden administration seven days to appeal the decision, which Merrick Garland did immediately.
The Fifth Circuit Court put the plaintiffs challenge to the 2000 approval on hold because too much time had passed, but ruled Kacsmaryk’s decision to undo the FDA’s more recent changes that began in 2016 — which extended the drug’s use into ten weeks of pregnancy, and allowed it to be delivered to patients by mail— could remain in place. The court has put those measures on hold.
The Biden administration has maintained that the lawsuit—brought by conservative legal group Alliance Defending Freedom on behalf of several plaintiffs—is part of the conservative right’s broader effort to ban abortion in America.
The implications of this ruling could be far-reaching; Democrats and the drug makers have warned it could undercut how the country regulates medications all together. “First and foremost, when you turn upside down the entire FDA approval process, you’re not talking about just mifepristone,” Health and Human Services secretary Xavier Becerra argued in a recent interview on CNN. “You’re talking about every kind of drug. You’re talking about our vaccines; you’re talking about insulin; you’re talking about the new Alzheimer’s drugs that may come on.”
The mifepristone is not over. The appeals court still has to decide on the case, and the issue will likely be escalated to the Supreme Court.