Anti-Abortion Activists Are Back to Trying to Ban Abortion Pills

The medication’s future is once again up in the air in federal court, this time in Louisiana.

Just a few weeks after the Supreme Court ruled to keep a common, effective, and safe abortion pill on the market, the medication’s future is once again up in the air in federal court.

On Wednesday, three judges from the 5th U.S. Circuit Court of Appeals in Louisiana, widely known as one of the most conservative courts in the country, will hear arguments in a lawsuit that threatens to torpedo national access to the abortion-inducing drug mifepristone. 


Filed by a pack of anti-abortion organizations late last year, the lawsuit argues that the Food and Drug Administration made a mistake when it approved mifepristone for use in abortions in 2000. A Texas federal judge agreed with the organizations and moved to suspend that approval earlier this year, but a panel of 5th Circuit judges instead found that it was too late to change the 2000 approval. Instead, those judges—who ruled without hearing arguments in the case—decreed that mifepristone should only be accessible under significant restrictions.

These restrictions would apply even in states that have laws on the books protecting abortion.

Last month, the majority-conservative Supreme Court ruled to pause that ruling and leave the status quo in place until the 5th Circuit heard arguments could be heard in the case. Now, the Biden administration will argue to keep mifepristone on the market and without the 5th Circuit’s restrictions.

Mifepristone is one of two drugs typically used in medication abortions, which made up the majority of U.S. abortions before the overturning of Roe v. Wade last year. Although abortion opponents have tried to argue that mifepristone is dangerous, the vast majority of research has concluded that the drug is safe. 


If mifepristone is taken off the market, or becomes harder to use, several abortion clinics have already said that they would switch to inducing medication abortions using only misoprostol, the other drug commonly used in medication abortions. A court ruling would also not impact the thriving underground market for abortion pills, since that market operates outside of the U.S. legal system.

But the case also has stakes that stretch far beyond abortion: If a court can choose to upend the FDA’s approval process for one drug, experts say, every other drug’s approval could be at risk. After the Texas judge’s ruling, more than 300 past and current pharmaceutical industry executives signed a letter condemning it

The three judges who will hear arguments Wednesday all have a history of opposing abortion rights. Judge Jennifer Walker Elrod has ruled that abortion providers should have admitting privileges at nearby hospitals, a requirement that abortion rights advocates say is unnecessary, while Judge James C. Ho has called abortion a “moral tragedy.” The last judge, Cory T. Wilson, has previously said that he supported the “complete and immediate” reversal of Roe.

Regardless of how these judges rule, though, the case won’t end with their decision. Instead, their ruling is almost certain to be appealed back to the Supreme Court. 

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