Fifth Circuit Reinstates In-Person Dispensing Requirement for Abortion Pill Mifepristone

A federal appeals court has reinstated an in-person dispensing requirement for the abortion medication mifepristone, shutting down telemedicine providers from prescribing the abortion pill across the U.S. In a 3-0 order issued by the Fifth U.S. Circuit Court of Appeals, the court granted Louisiana's request for an injunction against FDA rule changes from 2023 that allowed blue-state telehealth providers to send mifepristone to patients in states where abortion is banned.

The ruling does not affect misoprostol, the second medication used with mifepristone to terminate pregnancies, nor does it stop in-person prescription of abortion pills. The injunction will have the greatest impact on women in the dozen or so states where lawmakers have sought to end access completely.

Judge Stuart Kyle Duncan wrote for the court that the 2023 telemedicine rule "injures Louisiana by undermining its laws protecting unborn human life and also by causing it to spend Medicaid funds on emergency care for women harmed by mifepristone." He added, "Every abortion facilitated by FDA's action cancels Louisiana's ban on medical abortions and undermines its policy that 'every unborn child is a human being from the moment of conception and is, therefore, a legal person.'"

The ruling came after U.S. District Judge David Joseph in Lafayette, Louisiana, had paused Louisiana's lawsuit on April 7, pending the FDA's own safety review of mifepristone. Joseph wrote that "it is the completion of FDA's promised good faith, evidence-based, and expeditious review of the mifepristone REMS, not 'government by lawsuit' that this Court finds to be in the public interest." He indicated the state could continue its challenge after that review, adding that the stay "will not remain open-ended."

Louisiana Attorney General Liz Murrill filed the lawsuit last fall alongside Rosalie Markezich, who said she was coerced into taking abortifacient drugs by her then-boyfriend. The suit contends the policy enabled Markezich's former partner to acquire the drug from a California doctor and then coerce her into taking it. Murrill argued that the Biden administration's decision to drop the in-person dispensing rule was "arbitrary" and "capricious," and that abortion pills are too risky to prescribe remotely.

The U.S. Department of Justice under the Trump administration asked the court to pause the lawsuit, arguing that rolling back the Biden rules while its review is ongoing amounts to "judicial intervention" in the agency's drug review process. A DOJ spokesperson said the department was "committed to advancing President Trump's pro-life agenda" and "simply requested more time from the court for the FDA to complete its review."

A spokesperson for the Department of Health and Human Services said the FDA is conducting its safety study of mifepristone, including the collection of robust and timely data. "Once the FDA finishes its analysis of the data, the agency will decide whether to make substantive changes to the Mifepristone Risk Evaluation and Mitigation Strategy," the spokesperson said. The spokesperson noted such studies "often take approximately a year or more to conduct," but they plan "to have this study done sooner than that timeframe."

Twenty-one state attorneys general and 60 members of Congress filed amicus briefs in support of Louisiana's efforts. Rep. Chris Smith, R-N.J., and Sen. Bill Cassidy, R-La., filed a brief with 58 other members of Congress arguing the Biden administration's action was "unlawful" and raised concern that "without an in-person evaluation, a provider's ability to discern" coercion or intimate partner violence "is limited."

The Fifth Circuit panel harkened back to its earlier decision in a similar lawsuit three years ago, in which it ruled that the FDA exceeded its authority when it relaxed restrictions on mifepristone. The Supreme Court eventually rejected that case because the anti-abortion doctors who brought it lacked standing, but did not address whether the FDA's rule changes were legal. In Friday's ruling, Duncan wrote that the same reasoning "squarely applies" to the 2023 telemedicine rule change.