A three-judge panel from the 5th Circuit Court of Appeals in Louisiana, in a 2-1 Wednesday night decision, granted a partial stay of Judge Matthew Kacsmaryk’s April 7 ruling, which threatened to reverse FDA approval of the abortion drug entirely and halt distribution. However, the panel let stand the reinstatement of mifepristone restrictions the FDA had removed in 2016 and 2021.
Mifepristone’s approved use now will be limited to the first seven weeks of pregnancy, instead of the previous 10-week limit. Its use will require a follow-up doctor’s visit to check for complications after a chemical abortion. The drug will no longer be permitted to be distributed via mail without an in-person doctor visit, which the FDA had allowed since 2021 as an emergency pandemic measure it then made permanent.
The abortion pill mifepristone remains legal for the time being.
The appellate court panel said plaintiffs faced procedural obstacles in challenging the original approval of the drug. The current FDA rules, it said, constituted “an exceedingly unusual regime” because it “chose to cut out doctors from the prescription and administration of mifepristone,” CNN reported.
“In fact, as far as the record before us reveals, FDA has not structured the distribution of any comparable drug in this way,” the panel’s ruling said.
The Biden administration and mifepristone manufacturer Danco Laboratories said they would appeal the ruling to the Supreme Court. On Friday U.S. Supreme Court Justice Samuel A. Alito Jr. issued a temporary stay until midnight on Wednesday to allow the justices time to consider the appeal.