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Fifth Circuit Court of Appeals Rules Abortion Pill Can Remain on Market, With Restrictions

Rebecca Downs
Rebecca Downs  |  August 16, 2023 4:15 PM

On Wednesday, the U.S. Fifth Circuit Court of Appeals ruled 2-1 that the abortion inducing pill known as mifepristone can remain on the market. The court also ruled 3-0, though, that changes made in 2016, which significantly de-regulated the drug, did not follow proper procedure. Such safeguards must be restored. The drug will remain available to the public with those restrictions. Nevertheless, the ruling will remain on hold while the U.S. Supreme Court decides whether to consider the matter.

In April, U.S. District Court Judge Matthew Kacsmaryk’s ruled that the Food and Drug Administration (FDA) violated federal standards when it approved mifepristone to be used as an abortion method in 2000. The decision was appealed to the Fifth Circuit, which issued a stay in part and heard the case on expedited review in May. It was also appealed to the Supreme Court, which paused the ruling several times in April, ultimately pausing it during appeal. 

The 2016 changes to the method made the common but already dangerous method even more so. Such changes included expanding the approved timeline from 7-weeks to 10-weeks of pregnancy. In-person office visits were also reduced to just one visit, non-doctors were allowed to prescribe and administer mifepristone, and the reporting of nonfatal adverse events was eliminated. 

Such a method, known as medication abortion, or chemical abortion, accounted for 53 percent of all abortions in 2020, according to the Guttmacher Institute, which accounts for a likely rise in abortions.

Pro-life groups are celebrating the ruling over Twitter, including the Alliance Defending Freedom (ADF) legal group, and Susan B. Anthony Pro-Life America. 

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Students for Life of America (SFLA)'s Kristan Hawkins referred to it as a small step, but called for more to be done. 

"The abortion extremists in the Biden Administration through the FDA deliberately allow women to be exposed to injury, infertility, death, and abusers with their online distribution scheme," said Hawkins. "This ruling makes it clear that deadly drugs are being recklessly sold. Let’s not kid ourselves, this is one small step for women, but short the giant leaped needed to protect all, including the preborn and even our environment."

The Charlotte Lozier Institute, the research and education institute of SBA Pro-Life America released a peer reviewed journal in November of 2021 showing that emergency room visits went up 507 percent between 2002 and 2015 following this method, and that 60 percent of visits were incorrectly attributed to miscarriages. And these were the findings from before the method was approved for even further in pregnancy. 

This method carries with it four times the complications of surgical abortions. Side effects and risks associated include abdominal pain, nausea, vomiting, diarrhea, weakness, fever/chills, and headaches. The bleeding may last for weeks.

Some studies have found 10 percent of women face incomplete abortions at 9-weeks gestation. This can lead to death from infection if the remaining fetal parts or tissue are not properly removed.

When it comes to the likely path that the decision will ultimately take, Curt Levey, a constitutional law attorney and the president of the Committee for Justice, provided a statement for Townhall. 

"Courts have traditionally given nearly total deference to FDA decisions and that might have been understandable in an era in which great deference to administrative agencies was the norm. But today’s decision signals that judicial rubber stamping of the FDA is coming to an end," Levey said. "The Fifth Circuit’s decision is a reasonable compromise position that, if reviewed by the Supreme Court, will probably be affirmed, especially in light of its recent decisions signaling less deference to administrative agencies. Witness the Court’s recent pair of rulings against the EPA, its ruling against the Education Department on student loans, and its decision to hear a case next term that squarely challenges the deferential Chevron administrative law doctrine."