Federal judges ruled Wednesday that access to mifepristone, one of two drugs used in medication abortions, should be heavily restricted, but their decision won’t immediately change access to the pill.
The three-judge panel on the U.S. Court of Appeals for the 5th Circuit held that mifepristone can only be used up to seven weeks of pregnancy, and it can only be prescribed in person. It is currently approved for use until the tenth week of pregnancy, though health care providers will often prescribe it through the end of the first trimester. Evidence has also shown the drug is safe to be provided over telemedicine. The court’s decision would revert availability back to what the Food and Drug Administration approved in 2016.
But the ruling by itself won’t change access. In their decision, the judges wrote that their verdict is subject to approval by the U.S. Supreme Court, which in April ruled to block a lower court from tightening restrictions on how mifepristone is dispensed.
The case was brought by a collection of anti-abortion doctors, who have been seeking to undo the FDA’s approval for mifepristone entirely. The judges rejected that request, arguing that the drug, which was approved in 2000, had been on the market for too long, and rescinding approval would likely violate a statute of limitations.
It’s not clear when the Supreme Court will weigh in on this case.
The three-judge panel heard this case in May. At the time, their questioning focused on the issue of standing — whether the doctors suing had the right to challenge mifepristone’s availability, and if they could prove they had been harmed by its approval.
Critically, the judges ruled that the doctors had shown they had the right to sue. That could be influential whenever the high court hears this case.
“The working assumption is the Supreme Court will be on board with whatever when it comes to the merits, but there are problems with standing and timeliness,” Mary Zieger, an abortion law expert at the University of California Davis, told The 19th at the time. “The 5th Circuit is throwing its lot in with the plaintiffs and trying to help them convince the Supreme Court.”
A case like this is without precedent. If the judges’ ruling were to take effect, it could have major implications across the country. Abortion clinics in states flooded by out-of-state patients have relied on telemedicine as a way to expand capacity; the service has also helped providers reach patients who live in rural areas. In addition to the FDA, medical authorities such as the World Health Organization have also endorsed telemedicine for medication abortion.