AUSTIN, Texas – A federal appeals court has preserved access to an abortion drug for now but under stricter rules that would only allow the drug to be given up to seven weeks, not 10, and not by mail.
The drug, mifepristone, was approved for use by the Food and Drug Administration more than two decades ago. It is used in combination with a second drug, misoprostol. The 5th US Circuit Court of Appeals in New Orleans ruled Wednesday just before midnight.
By a 2-1 vote, a three-judge panel reversed for now a decision by a lower court judge in Texas that had completely blocked the FDA’s approval of the drug after a lawsuit by opponents mifepristone.
Read More: How Texas’ Abortion Pill Regulation Could Limit FDA Authority
The lower court’s decision had been stayed for a week to allow an appeal.
Under an appeals court order, the FDA’s first approval of mifepristone in 2000 is allowed to remain in effect.
But changes made by the FDA since 2016 relaxing the rules for prescribing and dispensing mifepristone would be suspended. These include extending the period of pregnancy when the drug can be used and also allowing it to be given by mail, without the need to visit a doctor’s office.
The two justices who voted to tighten, Kurt Engelhardt and Andrew Oldham, were both appointed by former President Donald Trump. The third judge, Catharina Haynes, was appointed by former President George W. Bush. She said she would have temporarily suspended the lower court’s decision to allow oral arguments in the case.
The decision could still be appealed to the US Supreme Court. In the meantime, Democratic leaders in states where abortion remains legal since the Supreme Court overturned Roe v. Wade last year said they are preparing in case mifepristone is restricted.
Read More: What’s happening again in the fight against the contraceptive pill
Gov. said New York Kathy Hochul said Tuesday that her state would provide 150,000 doses of misoprostol, another drug used in medical abortions.
Pharmaceutical officials this week also signed a letter criticizing the Texas ruling and warning that FDA approval of other drugs could be in jeopardy if US District Judge Matthew Kacsmaryk’s decision stands. There is almost no precedent for a single judge overturning the FDA’s medical recommendations.
The lawsuit against the mifepristone deal was brought by the Alliance for the Defense of Liberty, which was also involved in the Mississippi case that led to Roe v. Wade to reverse. At the heart of the lawsuit is the allegation that the FDA’s initial approval for mifepristone was flawed because the agency did not adequately review safety risks.
Mifepristone has been used by millions of women over the past 23 years, and complications from mifepristone appear at a lower rate than complications in the removal of wisdom teeth, colonoscopies and other routine procedures, medical organizations recently noted.
– Gresko reported from Washington. Associate news writer Mark Sherman of Washington also assisted.
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