Federal court considers legality of mail-order abortion drugs

A panel of three federal judges convened on Wednesday for oral arguments on the legality of Louisiana’s push to ban mail-order abortion drugs despite a 2023 federal policy change allowing abortion drugs to be received and taken remotely. The Biden administration removed an FDA safeguard requiring an in-person visit before a mother could receive the abortion drug mifepristone.

Louisiana state attorneys challenged the rule change, contending that states control policies on abortion since the Supreme Court overturned Roe v. Wade in 2022. State attorneys argued that the FDA lacked adequate evidence of the drug’s safety before it removed dispensing restrictions, making the FDA’s policy change arbitrary and capricious. The FDA’s policy change would harm the state because regulators did not have accurate data proving that the new requirements were safe, Louisiana attorneys argued. A three-judge appeals court panel unanimously affirmed the state’s arguments in a May ruling and issued an injunction effectively restoring the in-person requirements.

If a federal panel already ruled, why are they still holding arguments? The FDA petitioned the Supreme Court to grant a stay of the appeals court’s order and require the state to continue to honor the federal policy. The high court granted the FDA’s stay about two weeks after the first federal appeals ruling, keeping the Biden-era policy in place while the case played out in court. State attorneys returned to the Fifth Circuit Court of Appeals on Wednesday for another round of oral arguments.

So what are the new arguments about? The new round of oral arguments focused on the state’s standing to bring the case and the tangible harm caused by the policy change. Louisiana now petitioned the appeals court to deem the policy unconstitutional after the Roe v. Wade decision that allowed states to establish their own laws regulating abortion.

The FDA’s removal of the in-person dispensing requirement added additional risk to an already risky medication, making the action arbitrary and capricious, Louisiana Solicitor General J. Benjamin Aguinaga argued.

The panel repeatedly pressed the state attorneys on the legality of their overturning the policy, considering that the Supreme Court already ruled that the policy may stand while litigation continued. Judges also repeatedly questioned the data and methodology the state used that ultimately deemed the drug unsafe.

Attorney Jessica Ellsworth represented mifepristone drug producer Danco Laboratories, an appellant in the lawsuit, and argued that the state’s petition should not be granted in light of the Supreme Court’s ruling. The nation’s highest court already ruled that the case’s circumstances don’t warrant an injunction, she told the panel.

It remained unclear when the new panel would return an opinion.