08.16.23 (PRESS RELEASE) — Today, the U.S. Court of Appeals for the Fifth Circuit largely upheld an unprecedented order from Judge Matthew Kacsmaryk threatening access to mifepristone—one of two drugs used in medication abortion. The federal appellate court ruled for the second time to reinstate burdensome restrictions on mifepristone from pre-2016, but not to revoke FDA approval of the drug entirely. For now, this radical ruling will not take effect due to the Supreme Court’s April decision halting Judge Kacsmaryk’s order, and mifepristone will remain available under current regulations. However, the case will likely return to the Supreme Court for a final ruling on that order.
One of the restrictions that the court is attempting to reinstate would prevent access to medication abortion via telemedicine such as mail-order pharmacies—a practice that has been extensively proven to be safe and effective. If today’s ruling stands, it will make it much more difficult for patients to get abortion care in most states. Medication abortion currently accounts for more than half (53%) of all abortions in the U.S., and 98% of medication abortions in 2020 used mifepristone.
Statement from Nancy Northup, president and CEO of the Center for Reproductive Rights:
“This appeals court decision sets up a showdown at the Supreme Court over baseless attacks on medication abortion, which has been a lifeline since the high court reversed Roe last year. This order, if allowed to take effect, could jeopardize the FDA’s entire scientific system of drug approvals and would leave patients panicked and confused about their health and safety.”
The Fifth Circuit issued a largely identical preliminary ruling in April when considering the FDA’s emergency appeal of Judge Kacsmaryk’s order, which was then blocked by the Supreme Court. In both of the Fifth Circuit’s decisions, judges repeated widely debunked claims by anti-abortion groups that the FDA did not sufficiently study the safety and efficacy of the medication, despite extensive research that proves otherwise.
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