A federal appellate court on Wednesday upheld portions of a ruling restricting access to the abortion pill mifepristone, although the drug will remain available pending the outcome of ongoing litigation.
A three-judge panel of the right-wing 5th U.S. Circuit Court of Appeals ruled that mifepristone can remain on the market, while finding that the Food and Drug Administration's (FDA) 2016 move to allow the pill to be taken later in pregnancy, mailed directly to patients, and prescribed by healthcare professionals other than doctors was likely illegal.
The ruling—which the Department of Justice (DOJ) said it will appeal to the U.S. Supreme Court—was condemned by abortion rights advocates.
"Ignoring the facts and the expert scientific judgment of the country's top doctors is judicial activism of the highest order."
"This entirely illegitimate decision could cost lives all across the country," Rachel O'Leary Carmona, executive director of Women's March, said in a statement. "The conservative three-judge panel that is the 5th Circuit Court is just another agent in extremist Republicans' plan to enact a full nationwide abortion ban and to cut back access to critical reproductive healthcare."
"To be clear: Mifepristone is an FDA-approved medication that has been proven safe and effective for women in all walks of life for over two decades," she added. "It has a safety record of over 99%—more than that of Tylenol or Viagra."
Following the Supreme Court's cancellation last year of half a century of constitutional abortion rights in Dobbs v. Jackson Women's Health Organization, U.S. District Judge Matthew Kacsmaryk in Texas ruled this April in Alliance for Hippocratic Medicine v. FDA that the agency's approval of mifepristone in 2000 was illegal.
The DOJ subsequently appealed Kacsmaryk's decision to the 5th Circuit. Later in April, the Supreme Court granted a request by the Biden administration to continue allowing widespread access to mifepristone pending the outcome of the 5th Circuit case.
"Today's decision by the 5th Circuit to partially reaffirm Judge Kacsmaryk's ruling attempting to yank mifepristone off the shelves is an outrageous attack on the reproductive freedom and bodily autonomy of women and pregnant people in the United States," Catholics for Choice president Jamie Manson said in a statement.
"A mountain of scientific evidence demonstrates that mifepristone—which, when taken in combination with misoprostol, accounts for most of the abortions in the United States—is a safe and highly effective method of terminating an early pregnancy," Manson added. "Ignoring the facts and the expert scientific judgment of the country's top doctors is judicial activism of the highest order."
Nicole Regalado, vice president of campaigns at UltraViolet,
warned that "if the Supreme Court refuses to take this case, or affirms the 5th Circuit's decision, it will severely restrict access to mifepristone nationwide."
"Today's decision is a likely first step toward a massive blow to reproductive rights in the United States—and a stark reminder that our courts have been hijacked by Republican extremists who will stop at nothing to advance their sexist agenda," she continued.
"In times like these, every single one of us must make a choice: Will we stand by and let extremist judges impose their sexist agendas on millions of people, or step up to protect the rights of women and pregnant people to make decisions about their bodies?" Regalado added. "History will remember which side we choose."
