Less than a week after a federal judge in Texas suspended the Food and Drug Administration’s approval of the abortion pill mifepristone, an appeals court has preserved access to the drug.
In a 42-page ruling released late Wednesday, the 5th U.S. Circuit Court of Appeals allowed the FDA’s 2000 approval of mifepristone to remain in effect. The court found that “it appears the statute of limitations bars” the plaintiff’s challenge to the drug’s approval.
However, the court voted 2-1 to put on hold changes the FDA has made since 2016 that increased the gestational age that mifepristone could be used from seven weeks to ten, and that allowed the drug to be dispensed through the mail.
The case is expected to eventually go to the Supreme Court.
The case stems from a lawsuit filed in November by Alliance Defending Freedom on behalf of the Alliance for Hippocratic Medicine, an organization of pro-life medical groups, as well as four pro-life doctors. The lawsuit claims that the FDA never had the authority to approve the two-pill chemical-abortion regimen when it did so nearly a quarter century ago. Developed in France in the 1980s, the chemical-abortion process involves two pills: mifepristone, a progesterone blocker that kills the unborn baby by depriving it of nutrients, and misoprostol, which causes uterine contractions to empty the uterus.
The lawsuit also claims the FDA failed to properly study the safety of the regimen, and for almost two decades it stonewalled the doctors who were attempting to challenge the approval of the regimen, according to the lawsuit. Rather than increase scrutiny of the pills, the FDA has eliminated safeguards that did exist and has made the drug easier to obtain, according to the Alliance Defending Freedom (ADF), a pro-life organization.
More than half of all abortions in the U.S. are now done using chemical-abortion pills. ADF’s lawsuit is focused on the FDA’s approval of mifepristone.
The case was heard by U.S. District Judge Matthew Kacsmaryk in Amarillo, Texas. Kacsmaryk, a Trump-appointed justice, stayed his opinion for seven days to allow the Biden administration time to appeal; shortly after the opinion came out, a Washington State federal judge issued a contradictory ruling.
The Washington Post has described Kacsmaryk as a “religious conservative who is widely regarded as a thorough and analytical legal thinker, but who also comes to his work with a long history of activism rooted in his religious beliefs.” Before he became a federal judge, Kacsmaryk was a federal prosecutor and then a lawyer for the conservative First Liberty Institute.