U.S. court mulls challenge to mail-order abortion drugs

A district court judge for the Western District of Louisiana on Tuesday heard arguments on the state’s challenge to the policy allowing abortion drugs to be provided remotely. The U.S. Food and Drug Administration allows abortionists to mail abortion drugs to women without an in-person appointment. Lawyers brought the suit on behalf of the state and Rosalie Markezich. According to the lawsuit, Markezich’s boyfriend ordered pills online and coerced her into killing their unborn baby with them.

What’s next for the legal fight? Following the Tuesday hearing, Louisiana Attorney General Liz Murrill said that her team was prepared to continue fighting for unborn babies regardless of the court’s decision. Last week, the attorneys general from 21 states, 60 members of Congress, and 58 pro-life groups and advocates filed amicus briefs supporting Louisiana’s lawsuit.

The Biden administration in 2023 permanently removed a requirement of in-person dispensing for mifepristone and misoprostol, the two drugs involved in chemical abortions. Chemical abortions account for more than 60% of all abortions in the country.

Louisiana argues that the federal policy circumvents state-level protections for unborn babies. The U.S. Supreme Court’s decision in 2022 to overturn Roe v. Wade was intended to give states the ability to enact and enforce their own laws regarding abortion, said Senior Counsel for Alliance Defending Freedom Eric Baptist. That right has seriously been eroded by the FDA’s policy to allow the drugs to be shipped anywhere in the country, and state-level shield laws that protect abortionists from prosecution in other states, he said.

What is the history of the case? The plaintiffs filed their lawsuit against the FDA last October. In December, they requested a preliminary injunction to block the drugs from being prescribed via telehealth while the case continues. That request was the subject of Tuesday’s hearing.

Last month, the Trump administration asked a judge to pause the lawsuit while officials conduct a new study of mifepristone’s safety risks. Pro-life advocates and lawmakers have called on the administration to review the drug’s dangers. In its request, the administration said the lawsuit could interrupt that study and that the plaintiffs were not experiencing ongoing harm. Earlier this month, mifepristone manufacturers Danco Laboratories and GenBioPro filed to intervene in the case.

What happened in court? During the hearing, U.S. District Judge David Joseph asked the FDA to clarify how long its safety review is expected to take. The government did not share a more detailed timeline, said Katie Daniel, director of legal affairs and policy counsel for Susan B. Anthony Pro-Life America. In response to the government’s claim that the plaintiffs were not experiencing continuous harm because of the FDA’s policy on mifepristone, Daniel said women in Louisiana were routinely visiting hospitals due to complications from abortion drugs they received in the mail. Not only are the women experiencing physical harm, but the state’s doctors and Medicaid program are bearing the financial burden for treating those complications, Daniel told WORLD.

Meanwhile, the mifepristone manufacturers argued that they would suffer economic harm if the judge were to reinstate the in-person dispensing requirement, Daniel said. Both pharmaceutical companies only produce and distribute abortion pills and do not make any other drugs.

Louisiana’s case is not the only one aiming to reinstate protections around abortion drugs. Several states have filed their own lawsuits against the FDA over its current policies and against Planned Parenthood for what they characterize as its deceptive marketing tactics. But Daniel said Markezich’s involvement in Louisiana’s lawsuit brings a compelling voice to the case – that of a woman who says mail-order abortion pill access enabled her boyfriend to coerce her into having an abortion. Daniel expects this case to eventually make its way to the U.S. Supreme Court.

What have pro-abortion groups responded to the lawsuit? More than 100 organizations, including the American Civil Liberties Union, the National Domestic Violence Hotline, and the American College of Obstetricians and Gynecologists submitted their own briefs supporting the FDA’s policy. They claim abortion drugs should not be subject to protections like in-person medical visits or verification of pregnancy. 

Dig deeper: Read my report in Vitals about women across the country who have been coerced into killing their unborn babies.