Appeals court considers future of nationwide access to medication abortion

By Tierney Sneed, CNN

(CNN) — The issue of medication abortion was back before a New Orleans-based appeals court on Wednesday, in the latest iteration of a yearslong legal effort to end the provision of abortion drugs via telehealth.

Medication abortion now accounts for two-thirds of US abortions, which overall have increased since the 2022 Supreme Court decision that ended abortion rights protections nationwide. The latest case was brought against the Trump administration by Louisiana, which has argued its abortion prohibitions are being undermined by federal regulations that allow mifepristone to be sent to patients in the mail, without an in-person doctor’s visit.

Over roughly 100 minutes of arguments, the 5th US Circuit Court of Appeals wrestled with whether it could interfere with the US government’s regulatory approach to the abortion pill. The Justice Department has tried to head off the lawsuit by raising procedural issues with the case while refusing to endorse the safety of the drug.

The appeals court did not indicate how it intended to rule on Louisiana’s case; however it rules, it is expected that the Supreme Court will have the final word on the matter.

The high court issued an emergency order in May keeping the current rules allowing telehealth abortions in place for this current round of legal wrangling. Much of Wednesday’s hearing centered on what the appeals court could even do in the case in light of that order.

The judges also focused on the larger procedural question of Louisiana’s standing to bring the case, meaning whether it had shown the regulations were harming it in a way that made it appropriate for courts to intervene.

“I’m having trouble finding anywhere in the record that the FDA has approved the mailing of this drug into states where it’s unlawful to do that,” Judge Priscilla Richman, a George W. Bush appointee, told Louisiana Solicitor General Ben Aguiñaga.

Multiple judges on the panel pointed to Supreme Court precedents – including in a separate, earlier abortion pill case brought anti-abortion doctors – that shut the door to lawsuits that could only establish the challenger’s standing to sue through an “attenuated” chain of events.

DOJ attorney Daniel Winik said those standing issues alone were enough of a reason for the court to reject Louisiana’s request, as he dodged questions from the judges about the state’s arguments that FDA’s regulatory approach to the drug is flawed.

But Judge Stephen Higginson, an Obama appointee, expressed frustration when Winnick said he was not “authorized” to give his views about whether Louisiana was required to take steps to air its objections through the regulatory process before it could file its lawsuit.

While the 5th Circuit is generally a very conservative court, the trio of judges assigned to this stage of the case had a moderate-left lean, with President Joe Biden appointee Judge Dana Douglas joining Higginson and Richman on the panel.

The case has brought political heat for the administration, as anti-abortion groups have been irate that Trump’s FDA hasn’t sought to end telehealth abortion on its own and that it’s opposing the legal challenges.

The FDA says it’s undertaking a review of the drug’s safety profile and has sought to put the entire case on hold for that reason. Anti-abortion activists have accused the FDA of slow-walking the issue for political reasons, while reproductive rights groups worry that the administration will clamp down on medication abortion access after the midterms.

Higginson repeatedly noted that courts in other parts of the country – in cases brought by abortion providers and reproductive rights groups – had issued rulings faulting the FDA for being too strict in its regulations for medication abortion. He also raised a 2021 Supreme Court ruling that reversed a lower court order that required the FDA to allow telehealth abortions because of the Covid-19 pandemic.

“I guess what I’m saying – and then Chief Justice Roberts writes — it looks like the Supreme Court is being constant with one principle: Let FDA do its work,” Higginson said.

Still, the 5th Circuit panel didn’t shy away from Louisiana’s arguments for second-guessing the FDA’s regulations, with several questions about the data the agency considered when coming with the current rules and about the administrative process for reconsidering the regulations.

Erik Baptist, a senior counsel for Alliance Defending Freedom, Louisiana’s co-counsel in the case, told CNN after the hearing that the court’s willingness to dig into the merits of the lawsuit gave Louisiana the opportunity to flesh out its argument.

“We were happy to explain (to) the 5th Circuit the numerous harms that the state of is Louisiana incurring” because of the FDA’s rules, he said, describing those regulations as an “intentional” effort to send medication abortion drugs into anti-abortion states.

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