The U.S. Supreme Court is being asked to step in after a federal appeals court ruling took effect that would limit how patients can receive the abortion pill mifepristone through the mail, according to filings by the drugmakers. On Saturday, Danco Laboratories and GenBioPro asked the high court for an emergency pause on the 5th U.S. Circuit Court of Appeals decision, which they described as a sudden change in rules governing highly time-sensitive medical care.
The appeals court ruling, issued Friday and described as a victory for abortion opponents, overturned federal regulations set by the Food and Drug Administration that allow mifepristone to be dispensed through the mail. The 5th Circuit required that mifepristone be distributed only in person and at clinics, a requirement that came after the court concluded federal rules allowing mail-order access should not stand in the case before it.
Danco and GenBioPro argued the immediate impact of the appellate court decision was too disruptive to allow it to remain in force while the Supreme Court considers the underlying challenge. The filings asked the justices to block the ruling’s effect, emphasizing the uncertainty the change creates for patients and providers who rely on medication abortion arrangements made through telehealth and pharmacy delivery.
Mary Ziegler, an abortion-law expert and a professor at University of California at Davis School of Law, said the shift would show what the country looks like when abortion bans are in effect. “We’re now going to see, I think in a way we haven’t before, what the nation will look like when abortion bans are actually in effect,” she said, according to the Associated Press report.
The legal battle began when Louisiana Attorney General Liz Murrill sued the FDA last year. In that case, Murrill argued that the FDA’s rules permitting mifepristone to be dispensed through the mail undermine Louisiana’s ban on abortions at all stages of pregnancy. Friday’s appeals court ruling was in effect while the case continues in the courts, and the filing and reporting describe that it could affect patients in states with different abortion restrictions, not just in Louisiana.
Pharmacies and clinicians warned that the new limits would affect access for patients who lack nearby providers or who cannot find clinicians willing to participate under the altered delivery model. Josh Thorburn, the owner of Eddie’s Pharmacy in Los Angeles, said the change is a “huge access issue for patients that haven’t got providers close by, or providers close by who are willing to prescribe.”
The reporting also notes that there is “little precedent” for a federal court overruling the FDA’s scientific regulations governing the drug, and that it remains unclear how long-term abortion access could be affected. Mifepristone, first approved in 2000 as a way to end early pregnancies, is typically used in combination with misoprostol; misoprostol was described as not affected by the ruling, though it is less effective on its own.
A federal court shift like this also lands in a broader policy landscape in which abortion medication delivery has become closely tied to telehealth. Surveys cited in the reporting say the majority of abortions in the U.S. are administered using pills, and that about one in four abortions nationally are prescribed via telehealth. The report adds that abortion pill access after Roe v. Wade was overturned has been a particular target for abortion opponents, including through legal challenges seeking to restrict medication delivery across state lines.
In response to the court decision, the reporting described how clinicians and advocates are weighing options, including potentially pivoting to regimens involving only misoprostol for abortion care. “It’s got a chilling effect on providers across the country, and it’s going to have a chilling effect on patients, who are already having a hard time navigating the law state by state, and what they can get and how they can get care,” Mini Timmaraju, president and CEO of Reproductive Freedom for All, said in the report.
The Associated Press also reported that some states have adopted “shield laws” aimed at protecting providers who prescribe via telehealth and mail pills to states with bans, and that those laws are being tested in cases involving Louisiana and Texas. The report noted that Dr. Angel Foster, a telehealth provider in a shield-law state, was working with legal experts to understand how Friday’s ruling would affect her organization, the Massachusetts Medication Abortion Project. “We will do everything in our power to continue providing care to people in all 50 states,” she said.
The court case could also affect political dynamics heading into the midterm elections, with Democrats seeking to defend abortion access and Republicans attempting to hold on to a narrow majority in Congress. Ziegler said the change could be as significant as anything since Roe was overturned and asked what extent voters feel about the issue before they go to the polls.
The reporting cited recent electoral outcomes after Roe was overturned, noting that abortion appeared directly on the ballot in 17 states and that voters sided with abortion-rights positions in 14 of those questions. Fatima Goss Graves, president and CEO of the National Women’s Law Center, said the ruling was “deeply out of step with both the public and fact-based science,” according to the report.
In the aftermath of the ruling, federal agencies were described as not immediately responding to requests for comment, including representatives for the FDA and the U.S. Department of Justice. The Associated Press report also said the story was updated to correct the name of drugmaker GenBioPro and the timing of Louisiana’s lawsuit against the FDA. Associated Press writers Jamie Stengle in Dallas and Jeff Amy in Atlanta contributed.