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Texas abortion pill ruling partly blocked by appeals court – but barriers to access upheld

An appeals court ruling prevents an outright ban on mifepristone, but the conservative panel has effectively made the drug harder for millions of Americans to obtain

Rachel Sharp,Alex Woodward
Thursday 13 April 2023 09:52 BST
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Abortion rights advocate describes abortion to members of Congress in testimony

A federal appeals court has partially blocked a Texas judge’s ruling that would have suspended access to a widely used abortion drug.

In an order released in the middle of the night on 12 April, the US 5th Circuit Court of Appeals in New Orleans granted a request from the US Department of Justice to put US District Judge Matthew Kacsmaryk’s ruling on hold.

The US Food and Drug Administration’s (FDA) more than 20-year-old approval of the medication abortion drug mifepristone will remain in effect and the drug will remain on the market while an expedited appeal plays out.

But the conservative three-member appeals court panel has effectively made the drug harder for millions of Americans to obtain, teeing up a case that is now headed to the US Supreme Court.

The appeals court ruling blocks federal rule changes that allow the drug to be prescribed by mail and rolls back other regulations that the FDA loosened in 2016 to expand access to a drug that now accounts for more than half of all abortions in the US.

At the time, the FDA had expanded the drug’s approval for use up to 10 weeks of pregnancy. But the appeals court ruling reverts the rules for the drug’s approval up to only seven weeks of pregnancy, a period where many people are still learning whether they are even pregnant.

The Justice Department “will be seeking emergency relief from the Supreme Court to defend the FDA’s scientific judgment and protect Americans’ access to safe and effective reproductive care,” US Attorney General Merrick Garland said in a statement on 13 April.

The appeals court panel – made up of George W Bush-appointed Judge Catharina Haynes and two Donald Trump-appointed judges, Kurt Engelhardt and Andrew Oldham – argued that Justice Department has not shown they are likely to succeed in fighting against the challenge to the rule changes.

“As far as the record before us reveals, FDA has not structured the distribution of any comparable drug in this way,” the panel said.

On 7 April, Judge Kacsmaryk issued a ruling to revoke the FDA’s 23-year approval of the drug, a move that marked perhaps the most consequential backpedaling of abortion rights after the US Supreme Court revoked a constitutional right to abortion care and overturned the landmark precedent in Roe v Wade last year.

In November, a group of anti-abortion activists filed a lawsuit in an attempt to pull the FDA’s approval of mifepristone and federal rule changes that

The Trump-appointed judge, whose ruling was riddled with anti-abortion activist language, was a former counsel for a conservative Christian legal group. Judge Kacsmaryk’s ruling used language pulled directly from anti-abortion activists, including referring to abortion providers as “abortionists”, abortion patients as “post-abortive women,” and a fetus as an “unborn human”.

Protesters hold up signs after US District Judge Matthew Kacsmaryk’s ruling (REUTERS)

He also dismissed findings from major health organisations that determined the drug is both overwhelmingly safe and effective.

The judge’s ruling had been set to take effect in seven days – on 14 April – unless the appeals court intervened, prompting protests from the nation’s leading abortion rights advocacy groups and the appeal brought by the Biden administration.

In its appeal, the Justice Department said the judge’s ruling “upended decades” of federal guidance and risks “depriving patients of access to this safe and effective treatment, based on the court’s own misguided assessment of the drug’s safety” and efficacy.

Mifepristone is used for more than half of all abortions in the US.

The drug was approved for use by the FDA in most cases up to 10 weeks of pregnancy in 2000. A vast majority of abortions occur within the first nine weeks. From 2019 through 2020, nearly 93 per cent of all abortions were performed before the 13th week, according to the US Centers for Disease Control and Prevention.

Mifepristone is also used to treat miscarriages. Roughly 10 per cent of clinically recognized pregnancies end in miscarriages, according to the American College of Obstetricians and Gynecologists.

Speaking to reporters during a briefing in Dublin, White House press secretary Karine Jean-Pierre said that President Joe Biden’s administration plans to “continue to fight in the courts.”

“I can reassure the American people that that is our commitment to women – millions of women across the country – and also providers who are ... at the frontlines working every day to make sure that women are able to make decisions for themselves about their own body,” she added. “And we believe we will prevail because we believe that the law is on our side,” she said.

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