CNN —
A federal appeals court on Wednesday wiped away a lower court’s ruling that would’ve taken the medication abortion drug mifepristone off the market, but upheld aspects of the ruling that could cut back access to the pills.
The ruling from a conservative three-judge panel of the 5th US Circuit Court of Appeals will not affect the current availability of mifepristone, as the Supreme Court has already said that the drug and regulations that make it accessible will remain in place for the time being.
The ruling is the latest twist in the dramatic case, which is the most consequential legal battle over abortion since the Supreme Court last summer overturned the 1973 Roe v. Wade precedent that protected abortion rights nationwide.
Medication abortion makes up the majority of abortions obtained in the United States. Since Roe’s reversal, abortion providers in states where abortion remains legal have relied upon the availability of abortion pills to relieve the burdens on clinics that have been flooded with patients from regions of the county where abortion has been severely restricted.
Mifepristone is exceedingly safe and has a lower death rate than commonly prescribed drugs like penicillin and Viagra.
Wednesday’s ruling reversed parts of April’s blockbuster ruling from US District Judge Matthew Kacsmaryk that would have suspended the federal government’s two-decade old approval of the drug. The appeals court, however, agreed with Kascmaryk that it was likely unlawful for the government to make more recent changes to the drug’s regulations that made it easier to obtain.
Circuit Judge James Ho, a Donald Trump appointee, wrote a partial dissent, in which he said he believed the 2000 approval of mifepristone to be unlawful.
The lawsuit was filed in a Texas federal court in November by anti-abortion doctors and medical organizations seeking to pull mifepristone – the first drug in the two-pill regimen for terminating pregnancies – from the market. The challengers argue that the US Food and Drug Administration broke the law in how it approved mifepristone in 2000 and in how it has since relaxed certain restrictions for the drug’s use.
The case was filed in a remote Texas court division that guaranteed it would be heard by Kacsmaryk, an appointee of former President Donald Trump who worked for a conservative religious liberty organization before joining the bench and whose personal hostility toward abortion has been reported by The Washington Post.
Kacsmaryk embraced whole-heartedly the arguments put forward by the abortion opponents, with an April 7 ruling that would have suspended mifepristone’s approval but that was not allowed to take effect.
A previous panel of the 5th Circuit – during an earlier, emergency round of litigation – put parts of Kacsmaryk’s ruling on hold, and on April 21, the Supreme Court issued an unsigned order that froze the entirety of the judge’s decision while an appeal of it played out.
In the most recent stage of the proceedings, the 5th Circuit was giving a fuller review of Kacsmaryk’s ruling. The abortion foes drew an extremely friendly panel, made up of three very conservative judges who have ruled against abortion rights in the past, all appointed by Republican presidents.
During May 17 oral arguments in New Orleans, where the 5th Circuit is based, the judges tore into the FDA.
“We are allowed to look at the FDA just like we’re allowed to look at any agency,” Ho said, while decrying what he described as theme of “the FDA can do no wrong.”
Circuit Judge Jennifer Walker Elrod, a George W. Bush-appointee, railed against the briefs filed by a mifepristone manufacturer that has intervened in the case, with the judge claiming that the briefs amounted to “personally attacking” Kacsmaryk.
In one line of questioning, Trump-appointed Circuit Judge Cory Wilson zeroed in on the FDA’s moves to allow the pills to be mailed to patients and to lift requirements for an in-person visit with a provider.
Hinting that he was convinced by the anti-abortion doctors’ arguments that the drug was leading to medical emergencies that were causing them harms, Wilson said that FDA had “made it much more likely that patients are going to go to emergency care or a medical clinic where one of the doctors is a member.”
This story has been updated with additional details.