The Trump administration is bracing for another high-stakes confrontation over abortion policy, just two months before the midterm elections. On Wednesday, a three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans will hear oral arguments in a case that could curtail the nationwide availability of mifepristone, the drug used in the majority of medication abortions.
Since the Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women's Health Organization, medication abortion has become the most common method of ending a pregnancy, with a significant share of those prescriptions now written via telehealth. The Biden administration loosened telehealth restrictions during the COVID-19 public health emergency, allowing pills to be prescribed remotely and delivered by mail or through pharmacies.
Louisiana, which has enacted a near-total abortion ban, sued to block that policy, arguing the FDA's permissive rules undermine the state's sovereignty and that the agency lacked sufficient safety data to drop the in-person dispensing requirement. The state's case is one of three federal lawsuits—alongside challenges in Missouri and Texas—that could reshape how abortion pills are accessed nationwide.
According to the Guttmacher Institute, a research group that supports abortion access, roughly 91,000 abortions were provided last year via telehealth prescriptions mailed into states with bans, including more than 9,300 in Louisiana. Kelly Baden, Guttmacher's vice president for U.S. policy, called the stakes “enormous,” saying patients and providers have faced “nonstop attacks” and urging the Fifth Circuit to reject the case and preserve the current access.
The litigation places the Trump administration in an awkward political position. The White House has declined to defend the Biden-era FDA rules, but Attorney General Todd Blanche has not yet settled the lawsuit, frustrating anti-abortion advocates who want a quick victory. “The Trump administration could resolve this issue tomorrow by settling our case. Absolutely,” said Gabriella McIntyre, legal counsel for Alliance Defending Freedom, which is representing Louisiana and a co-plaintiff who says she was coerced into taking the pills.
During his confirmation hearing, Blanche pledged to crack down on mail-order abortion drugs, citing videos of pills arriving in plastic bags without instructions. He has also hinted to faith leaders that restrictions are coming, saying the administration is “putting practices and policies in place” to prevent out-of-state organizations from mailing pills into states where they are banned.
Yet the Justice Department has simultaneously urged courts to pause mifepristone litigation while the FDA completes a safety review. An administration official said in June that the retrospective analysis could take six months, with initial results possible sooner. A district court judge in Louisiana has set an Oct. 7 deadline for a status update, meaning some findings could surface just weeks before the election.
Anti-abortion groups hope the FDA review will lead to new restrictions, but they want faster action. The administration insists the process takes time, but conservative states are not waiting. In May, the 5th Circuit temporarily blocked telehealth prescriptions nationwide after Louisiana appealed a district court's pause. The Supreme Court later intervened, sending the case back without ruling on the merits—and notably, the Justice Department declined to weigh in, while other GOP states and members of Congress did.
McIntyre argued the administration's silence on the case's merits is telling, suggesting it does not believe the FDA's actions were defensible. She expects much of Wednesday's arguments to focus on whether Louisiana has standing to seek a nationwide ruling. “If Louisiana wins, we're going to see for the first time truly what it looks like for pro-life states to actually be able to enforce their pro-life laws protecting the unborn. That was the promise of Dobbs,” she said.
Legal experts say the administration's attempt to straddle the issue may backfire. Katie Keith, director of the Center for Health Policy and the Law at Georgetown University's O'Neill Institute, said the White House is “not being able to have it both ways on this.” By trying to stay out of the fray and defer to the FDA review, she said, the administration risks alienating both sides and leaving the final outcome to the courts. The case could also intersect with other political flashpoints, including the administration's broader policy blitz and its handling of midterm pressures.
