Washington, D.C. — A U.S. federal appeals court issued a significant ruling on Friday, April 7, 2023, concerning the abortion medication mifepristone, temporarily blocking its prescription via telemedicine and delivery by mail. The decision emerged unexpectedly, even as over a hundred reproductive health physicians gathered in Washington, D.C., were receiving an update on the evolving legal landscape of reproductive health care.
Molly Meegan, the chief legal officer of the American College of Obstetricians and Gynecologists (ACOG), was delivering a presentation when news of the ruling by a panel of the U.S. Court of Appeals for the Fifth Circuit broke. Unaware of the development as she spoke, Meegan later reacted strongly to the decision. “This is not a ruling based in evidence, science or best interests of women,” she stated, emphasizing the medical community’s concern over the court’s intervention in drug regulation.
The Fifth Circuit’s order, which is already facing legal challenges, if allowed to stand by the Supreme Court, would significantly alter access to medication abortion across the United States. This method has seen substantial growth in recent years, becoming the most common form of abortion. The ruling has intensified the national debate surrounding abortion, prompting swift and varied responses from organizations supporting and opposing abortion services, placing reproductive rights once again at the forefront of public discourse.
The immediate impact of the ruling means that for patients seeking medication abortion, the requirement for an in-person visit to a medical provider to obtain mifepristone would be reinstated, effectively rolling back measures that had expanded access. This development comes at a time when the legal status of abortion has been in flux following the overturning of Roe v. Wade, with states grappling to define their own reproductive health policies.
Kelly Baden, vice president for public policy at the Guttmacher Institute, a research organization that advocates for abortion rights, described the decision as “the most sweeping threat to abortion since the overturning of Roe v. Wade.” Baden further elaborated on the potential widespread consequences: “If allowed to stand, it would severely restrict access to mifepristone in every state, including those where abortion is broadly legal and where voters have acted to protect abortion rights.” This highlights the federal court’s ability to impact healthcare access even in states that have codified abortion protections.
The legal challenge leading to this ruling originated from a lawsuit filed by Louisiana, a state with a near-total ban on abortion, seeking to prevent the distribution of mifepristone by mail. In its decision, the appeals court stipulated that while this lawsuit proceeds, the Food and Drug Administration (FDA) must reinstate previous requirements, including that patients visit medical providers in person to obtain mifepristone. This directly reverses the FDA’s earlier decision to relax these restrictions, which had been in place since 2021.
In response, a manufacturer of mifepristone promptly filed an emergency appeal with the Supreme Court on Saturday, April 8, 2023, urging the nation’s highest court to restore full access to the drug. A second mifepristone maker indicated plans to file a similar appeal, signaling a concerted effort to challenge the Fifth Circuit’s decision. As of the time of this report, the Biden administration has not yet commented on the ruling or outlined what steps it might take in response, maintaining a cautious stance amidst the escalating legal battle.
Conversely, anti-abortion advocacy groups lauded the appeals court’s decision as a significant triumph. Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, hailed the ruling as “a huge victory for victims and survivors of Biden’s reckless mail-order abortion drug regime,” framing the expanded access to medication abortion as a danger to women. Similarly, Carol Tobias, president of National Right to Life, issued a news release asserting that the ruling “recognizes that the FDA cannot simply sweep legitimate safety concerns aside in favor of politics,” underscoring the long-held argument by abortion opponents regarding the drug’s safety.
Abortion opponents have consistently argued that the FDA’s decision to allow abortion pills to be available by mail posed unacceptable safety risks to women and infringed upon the sovereignty of states that had implemented bans on abortion. They contend that the ease of access through mail-order diminishes necessary medical oversight. However, major medical organizations, including the American College of Obstetricians and Gynecologists, and supporters of reproductive rights have consistently countered these claims. They point to an extensive body of research, comprising more than 100 studies, which has affirmed the safety and effectiveness of mifepristone, noting that serious side effects are exceedingly rare.
Medication abortion has become the predominant method for terminating pregnancies in the United States, accounting for nearly two-thirds of all abortions. This method typically involves a two-drug regimen administered through the first 12 weeks of pregnancy. The first drug in this regimen is mifepristone, which received FDA approval in 2000. It functions by blocking progesterone, a hormone essential for a pregnancy to develop and continue. The second drug, misoprostol, has numerous other medical applications, including the prevention of stomach ulcers, and was not directly affected by the Fifth Circuit ruling. Misoprostol works by causing contractions similar to a miscarriage and is typically taken 24 to 48 hours after mifepristone.
In light of the ruling, several abortion providers across the country have indicated their preparedness to adapt their services. Many are now contemplating or actively implementing telemedicine services that prescribe only misoprostol. While misoprostol can be used on its own for abortion, it is generally considered to be somewhat less effective than the two-drug combination and carries a higher likelihood of side effects. This shift underscores the rapid adjustments being made by clinics to ensure continued, albeit modified, access to abortion services.
For instance, earlier on the day of the Fifth Circuit’s ruling, Planned Parenthood of Greater New York had announced an expansion of its telemedicine abortion service. Following the decision, the organization swiftly announced its intention to continue providing telehealth abortion services by prescribing misoprostol alone. Jacquelyn Marrero, a spokesperson for Planned Parenthood of Greater New York, confirmed this strategic pivot: “In the wake of yesterday’s harmful decision by the Fifth Circuit, Planned Parenthood Direct is mailing misoprostol-only prescription kits.”
Telemedicine abortion services, which allow patients to consult with providers and receive medication through the mail without an in-person visit, have grown substantially since the FDA began allowing them in 2021. According to a recent report from a reproductive rights research group, over one-fourth of abortions in the country were provided via telemedicine in the first half of 2023, reflecting a growing reliance on this accessible method of care. This growth has been particularly crucial for individuals in states where abortion access is severely restricted.
Although abortion is currently banned or significantly restricted in 20 U.S. states, more than 100,000 patients annually in these states have been able to receive abortion pills through the mail. This access is primarily facilitated by medical practitioners operating in states that have enacted “abortion shield laws.” These laws are designed to protect providers from legal actions—such as subpoenas, extradition requests, and other judicial measures—initiated by states with abortion bans against those who provide or assist with abortion services to their residents. The Fifth Circuit’s ruling complicates this intricate network of interstate care.
The interplay between state abortion bans and shield laws is currently being tested by several ongoing legal cases, which are widely anticipated to culminate in a constitutional showdown before the Supreme Court. This looming conflict centers on the fundamental question of whether states are constitutionally required to honor one another’s abortion laws, particularly when they are in direct opposition. Many abortion providers, anticipating the conservative leanings of the Fifth Circuit, had already developed contingency plans, demonstrating a proactive approach to potential legal setbacks.
Julie Burkhart, who operates Wyoming’s sole abortion clinic, expressed the dual impact of the Fifth Circuit’s decision. She called the ruling “devastating, but it’s not surprising,” reflecting a sense of both disappointment and weary preparedness among providers. Ms. Burkhart confirmed that her clinic had temporarily suspended telehealth medication abortion appointments in direct response to the ruling. However, she voiced a strong commitment to swiftly resuming services, albeit with potential adjustments. “We’re trying to move very quickly to get something into place so we can have that continuity of care, but we want to be also thoughtful and intentional, so that we are giving the best possible care to our patients,” she articulated, highlighting the balance between urgency and patient well-being.
Dr. Angel Foster, co-founder of The Massachusetts Medication Abortion Access Project, an organization operating under that state’s shield law, issued a statement indicating that her group is actively consulting legal experts to fully understand the implications of the ruling. Dr. Foster reaffirmed the organization’s dedication, stating that they would “do everything in our power to continue providing care to people in all 50 states,” underscoring the resolve of providers in pro-access states to serve patients nationwide.
Dr. Jodi Abbott, a specialist in high-risk pregnancies and a consultant to the Massachusetts project, confirmed that, like other providers, her organization would pivot to prescribing and mailing only misoprostol for abortions. Dr. Abbott, who is also a clinical professor at Boston University, addressed concerns regarding this alternative method: “We have no concerns about its safety or efficacy,” she said of using misoprostol alone. However, she candidly acknowledged the compromise: “But we also know it’s not optimal.” This sentiment reflects the difficult choices healthcare providers are facing as they adapt to the rapidly changing legal landscape, striving to maintain access to care under increasingly restrictive conditions.
Kate Zernike contributed reporting.
Why This Matters
The Fifth Circuit’s ruling on mifepristone represents a pivotal moment in the ongoing battle over reproductive rights and healthcare access in the United States, with significant implications stretching across legal, medical, and political spheres.
Disruption of Abortion Access: This decision immediately threatens to severely restrict access to medication abortion, which accounts for nearly two-thirds of all abortions nationwide. By reinstating an in-person visit requirement and blocking mail delivery of mifepristone, the ruling disproportionately affects individuals in rural areas, those with limited financial resources, and people in states with existing abortion bans who rely on telemedicine and mail-order services from shield-law states. It creates new barriers to care, potentially forcing patients to travel long distances, incur greater costs, or delay necessary medical procedures, exacerbating existing healthcare disparities.
Challenge to FDA Authority: The ruling fundamentally challenges the long-standing authority of the Food and Drug Administration (FDA) to regulate and approve drugs. For decades, the FDA has been the primary arbiter of drug safety and efficacy in the U.S. This judicial intervention, questioning the FDA’s scientific determinations regarding mifepristone, could set a dangerous precedent. It opens the door for courts to second-guess the scientific judgment of expert federal agencies, potentially impacting the availability and regulatory oversight of a wide range of medications beyond reproductive health.
Escalation of Post-Roe Legal Battles: Coming after the Supreme Court’s overturning of Roe v. Wade, this ruling intensifies the legal fragmentation of abortion access across the country. It pushes the conflict between states with abortion bans and those with protective “shield laws” toward an inevitable “constitutional showdown” before the Supreme Court. The core question—whether one state’s laws can govern healthcare access for residents of another—has profound implications for federalism and individual rights in the U.S.
Impact on Healthcare Providers and Innovation: Healthcare providers are being forced to rapidly adapt their practices, including shifting to less optimal, misoprostol-only abortion protocols. This not only burdens providers with complex legal and logistical challenges but also potentially compromises patient care by making effective two-drug regimens less accessible. The uncertainty created by such rulings can also stifle innovation and the adoption of telemedicine, which has proven critical for expanding healthcare access in various medical fields.
Political Ramifications: The decision thrusts abortion back into the national political spotlight, further polarizing an already contentious issue. It will undoubtedly mobilize activists and voters on both sides of the debate, influencing upcoming elections and legislative efforts at both state and federal levels. For the Biden administration, it presents a significant challenge to navigate, balancing executive authority with judicial rulings and public opinion on a deeply divisive topic.
In essence, this ruling is not merely about a single drug; it reflects a broader struggle over who controls healthcare decisions—patients and their doctors, or courts and politicians—and the extent to which federal agencies can exercise their mandated authority free from judicial interference. Its ultimate resolution will shape the future of reproductive healthcare and potentially drug regulation for years to come.