Mifepristone Legal Battle Returns to Fifth Circuit After Supreme Court Dismisses Case

The legal battle over mifepristone, a medication used for pregnancy termination, has taken another turn as the U.S. Court of Appeals for the Fifth Circuit reinstated restrictions on its availability via telemedicine.

In 2023, the Supreme Court blocked a district court order that sought to overturn the FDA's approval of mifepristone. The Fifth Circuit had partially stayed the district court's decision but left in place portions that would have limited the drug's availability. A year later, the Supreme Court unanimously dismissed FDA v. Alliance for Hippocratic Medicine due to a lack of Article III standing.

Litigation persisted, and on Friday, in Louisiana v. FDA, a unanimous panel of the Fifth Circuit issued a stay on the FDA's 2023 regulation. This regulation had allowed mifepristone to be prescribed without an in-person medical visit, including via telemedicine.

Fifth Circuit's Ruling and Legal Arguments

The Fifth Circuit concluded that Louisiana was strongly likely to prevail on two key arguments: standing and the FDA's decision-making process. The court found that Louisiana's claim of injury was plausible, unlike the previous case brought by the Alliance for Hippocratic Medicine.

The Fifth Circuit's order highlighted several notable aspects:

• Standing Arguments: Louisiana argued that the FDA's telemedicine allowance made it easier for individuals to circumvent Louisiana's abortion laws, resulting in a sovereign injury. The state also claimed a financial injury, asserting that it had to cover medical complications from out-of-state mifepristone prescriptions.
• Legal Precedents: The court's embrace of Louisiana's standing arguments raised concerns about the potential expansion of state standing claims. The Fifth Circuit's reasoning could open the door to other states suing over federal regulations they deem too lenient, such as gun control or drug enforcement.
• Financial Injury Concerns: While financial harm is a recognized injury under Article III, Louisiana's argument was deemed speculative. The state cited two cases where it covered medical costs for complications from out-of-state mifepristone prescriptions but did not clearly link these cases to the FDA's actions.

The Fifth Circuit's stay was issued under Section 705 of the Administrative Procedure Act (APA), temporarily halting the FDA's telemedicine regulation until the case is resolved.