7 min read

Appeals court preserves abortion pill access

The latest in a high-stakes legal dispute over a widely used abortion pill.
Appeals court preserves abortion pill access
(Robin Marty)

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Appeals court allows abortion pill to remain available, with restrictions

A federal appeals court ruled late Wednesday night that the abortion pill mifepristone can remain on the market, while also imposing new restrictions on the drug’s availability.

The 42-page order by a panel of three Fifth Circuit judges partially overturns last week’s sweeping ruling by Texas-based federal district court judge Matthew Kacsmaryk. Here’s the latest...

The new ruling

While Kacsmaryk’s decision would have pulled mifepristone from the market completely as soon as this Friday — an unprecedented judicial intervention in the drug approval process — the appeals court panel temporarily upheld the FDA’s 2000 authorization of the abortion pill, saying it took place too long ago for the courts to tamper with it.

However, the judges said, the FDA’s more recent updates to the authorization were not too old to be overturned. The appeals court suspended a 2016 revision by the FDA that allowed mifepristone to be used through 10 weeks of pregnancy, instead of seven, and a 2021 revision that allowed the drug to be dispensed through the mail.

All three judges — two Trump appointees and a George W. Bush appointee — agreed on allowing the FDA’s initial approval of the drug to stand. The Bush appointee said she would have allowed the later revisions to remain in effect as well.

What’s next

Wednesday night’s ruling — keeping mifepristone available under the 2000 terms, but curtailing the wider access provided in 2016 and 2021 — will be the new status quo until the Fifth Circuit can hear full oral arguments in the case.

Both the FDA and mifepristone’s opponents could appeal to the Supreme Court to urge the justices to temporarily overturn the parts of the Fifth Circuit order they disagree with.

Whether or not the justices become involved at this stage, the case is widely expected to make its way to the Supreme Court eventually. However, some legal experts have expressed skepticism that even the conservative justices would embrace Kacsmaryk’s far-reaching initial ruling.

Big picture

Medication abortion — which consists of taking mifepristone and then another drug, misoprostol, one or two days later — accounts for more than half of abortions in the United States, which means taking either drug off the market would dramatically limit nationwide abortion access.

The outcome of the case will also have major implications for the FDA approval process; Kacsmaryk’s decision was the first time a judge had ordered an FDA-authorized drug to be completely removed from the market. Kacsmaryk’s ruling has been criticized for its use of language like “unborn human” and “abortionists” and its reliance on anonymous blog posts and other cherry-picked research.

According to the New York Times, more than 100 scientific studies — conducting in 26 countries over the past 30 years — have confirmed the safety of mifepristone and misoprostol.

What to watch

  • Red state, blue state: Continuing the national split in abortion policy since the Dobbs decision, Democratic-led states like California and Massachusetts responded to Kacsmaryk’s ruling by stockpiling abortion pills for their citizens.
  • WH response: Although some Democrats have called for the FDA to ignore any decision overturning its mifepristone approval, the White House has ruled out such an approach as “dangerous.”  
  • Next battleground: The Florida state House is expected to vote today on a six-week abortion ban supported by Gov. Ron DeSantis (R-FL). If DeSantis becomes the Republican presidential nominee, any abortion restrictions he passed in Florida would likely become a leading Democratic talking point.

White House: President Biden is in Ireland, set to meet today with the country’s president and prime minister. Vice President Harris, meanwhile, will cap off the administration’s “Investing in America” tour by announcing a $72 million grant to upgrade the 14th Street Bridge in Washington, D.C.

Senate: After two House Democrats called for her resignation on Wednesday, Sen. Dianne Feinstein (D-CA) asked to be taken off the Senate Judiciary Committee so the panel could continue processing judicial nominees as she recovers from shingles. Feinstein said she would return to Washington “as soon as possible,” although Politico reported that some Democrats close to her are concerned “she may never come back to Washington at all.” The 89-year-old still has almost two years left in her term.

Federal Reserve: The government said Wednesday that prices increased 5% in March compared to the year before, the lowest annual increase in almost two years. However, core inflation — which excludes the more volatile categories of food and gas (both of which saw price falls in March) — rose by 5.6% compared to a year earlier, including year-over-year price increases for food and rent of 8.5% and 8.3%, respectively. The muddled report complicates matters for the Fed, which is still likely to continue raising interest rates when it meets next month.

Pentagon: The U.S. is “getting close” to finding the person responible for leaking hundreds of pages of classified documents, President Biden told reporters this morning. However, the Washington Post appears to have identified him — or at least his online profile. According to a Post report citing a friend of his, the leaker is a “young, charismatic gun enthusiast” who is active on Discord and worked on a military base.

New York City: Former President Donald Trump will return to Manhattan today for his second deposition in New York Attorney General Letitia James’ $250 million business fraud lawsuit against him. Meanwhile, Trump announced a lawsuit of his own on Wednesday: a $500 million claim against his former lawyer Michael Cohen for alleged breach of contract.

Campaign Trail: Earlier this week, I wrote about the two major threats facing the GOP: Donald Trump and abortion. In an interview with CBS News on Wednesday after launching a presidential exploratory committee, Sen. Tim Scott (R-SC) refused to detail his position on either one of them, declining to say both if he’d vote for Trump in a general election or if he supports a federal abortion ban.

  • Big picture: As Ron DeSantis is discovering after a series of flip-flops, it’s hard to stay competitive in a presidential contest by trying to please everyone. A new Winthrop University poll found Scott taking 7% in his home state primary, coming in behind Trump, DeSantis, and fellow South Carolinian Nikki Haley (who appointed Scott to the Senate while she was governor).
  • Get ready: The RNC announced Wednesday that the first Republican primary debate will be held in August in Milwaukee, airing on Fox News.

Nashville: Both Tennessee Democratic lawmakers expelled from the state House have now returned to the chamber, after a local body in Memphis voted Wednesday to reappoint Justin Pearson to his seat on an interim basis. A local body in Nashville did the same for Justin Jones earlier this week; both legislators will still have to run in special elections to regain their seats permanently.

  • On the national level: A group of Senate Democrats, including Senate Majority Leader Chuck Schumer (D-NY), called Wednesday for a Justice Department investigation into whether the expulsions violated the Constitution or federal civil rights law. Both Pearson and Jones are Black; a white Democratic lawmaker who faced an expulsion vote was allowed to keep her seat.

Here’s something fun: A new podcast about John Quincy Adams is launching today!

OK, that might not sound that interesting... but get this: it’s being hosted by Bob Crawford, the bassist for the Avett Brothers.

Crawford told the New York Times that he grew up interested in history, but his passion became crystallized reading lengthy history tomes while on the tour bus crisscrossing the country tour with his band.

Why Adams? “He knows democracy is on the line, he knows slavery is a moral evil,” Crawford told the Times. “He’s one of those transcendent characters. He deserves to be in the pantheon.”

The podcast will also feature voice acting from the likes of Nick Offerman, Ken Burns, and (of course) one of the Avett Brothers themselves, Scott Avett. Click below to listen:

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— Gabe