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Legal arguments over women’s access to a drug used in the most common method of abortion move to a federal appeals court in New Orleans on Wednesday, in a case challenging a Food and Drug Administration decision made more than two decades ago.
The closely watched case is likely to wind up at the Supreme Court, which already has intervened to keep the drug, mifepristone, available while the legal fight winds through the courts.
Three 5th Circuit Court of Appeals judges are set to hear arguments Wednesday. At issue are the FDA’s initial approval of mifepristone in 2000, and FDA actions making the drug more accessible in later years. The judges won’t rule immediately.
Judges nominated to the district court and appeals court by former President Donald Trump are playing major roles in the case, which is being argued almost a year after the Supreme Court overturned the Roe v. Wade ruling that had established abortion rights. Fourteen states have since banned abortion at all stages of pregnancy and other states have adopted, or are debating, major restrictions.
In November, abortion opponents in Texas filed a lawsuit in federal court in Amarillo, where U.S. District Judge Matthew Kacsmaryk, a Trump nominee, presides. Kacsmaryk issued a ruling on April 7 that would have revoked FDA approval of mifepristone in a Texas lawsuit brought by abortion opponents after the Supreme Court reversal of Roe v. Wade. The Biden administration and drug maker Danco Laboratories quickly appealed to the 5th Circuit, seeking a stay of Kacsmaryk’s ruling.
An appellate panel voted 2-1 to narrow, but not completely block, Kacsmaryk’s ruling. Their April 13 ruling said the abortion opponents appeared to be barred by time limits from challenging the initial 2000 approval. But the panel said the reimposed rules for physician visits and bars on mailing the drug could stay in place.
Later, the Supreme Court put the lower court rulings on hold pending appeals, almost certainly leaving access to mifepristone unchanged at least into next year.
For now, the case is in the hands of James Ho and Cory Wilson, both Trump nominees, and Jennifer Walker Elrod, a George W. Bush nominee. The 5th Circuit, with 17 active judges, is dominated by Republican-nominated judges.
In the years since mifepristone’s initial approval, the FDA has extended the time it can be used from seven to 10 weeks of pregnancy, reduced the dosage needed to safely end a pregnancy, eliminated the requirement to visit a doctor in person to get it and allowed pills to be obtained by mail.
Mifepristone is one of two pills used in medication abortions, along with misoprostol. Health care providers have said they could switch to misoprostol if mifepristone is no longer available or is too hard to obtain. Misoprostol is somewhat less effective in ending pregnancies.
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