A federal appeals court on Wednesday heard arguments in a case that could reshape access to medication abortion nationwide, even in states where abortion remains legal. The three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans pressed attorneys for Louisiana, the Food and Drug Administration (FDA), and two drug manufacturers and distributors of mifepristone—a drug used in nearly two-thirds of U.S. abortions—on the state's legal standing and whether it exhausted administrative remedies before suing.
Louisiana Solicitor General Ben Aguiñaga argued that the FDA's 2023 decision to lift the in-person dispensing requirement for mifepristone infringed on the state's ability to enforce its abortion ban. He claimed the state sees about 1,000 abortions per month due to pills mailed into Louisiana via telehealth, posing a concrete threat to state finances and sovereignty. The state cited two instances where women with complications required Medicaid-funded follow-up care, and contended the Biden administration targeted Louisiana when it eased restrictions in 2021 and 2023—before the Supreme Court overturned Roe v. Wade in 2022.
Judge Stephen Higginson, a Barack Obama appointee, expressed skepticism about the state's harm argument. “I’m looking at six different steps … and we’re going to attribute that to the federal government?” he asked, noting that “too many independent actors” are involved to blame the FDA's safety assessment for the abortion rate. The case is one of three brought by anti-abortion attorneys general from red states challenging federal rules that permit mailing abortion pills to states where abortion is largely illegal.
The Trump administration finds itself in a delicate position: it won't defend the Biden-era FDA rules, but it also argues Louisiana lacks standing. Justice Department attorney Daniel Winik stuck to the narrow standing issue, declining to address the merits—a move that frustrated the panel. “That to me, I don’t find that very satisfactory that the agency won’t give an opinion on its own regulations,” Higginson said. The DOJ has urged courts to pause mifepristone lawsuits pending an FDA safety review, which an administration official said in June could take six months, with initial results possible sooner.
Legal experts say the case is likely to return to the Supreme Court, especially given other pending mifepristone litigation. The high court has already blocked changes to prescribing rules until it reviews the matter again. After the FDA's review, the agency could make changes sought by red states without court approval, but such action would almost certainly face legal challenges.
Katie Keith, director of the health policy and law initiative at Georgetown University’s O’Neill Institute, said Louisiana's sovereignty argument undermines the premise of the Dobbs decision and tramples on other states' rights. “This is much more about the states where abortion is lawful and access in blue states,” she said, noting that making it illegal in one state doesn't stop women from obtaining medication abortion elsewhere. “The idea that we’ll just make it illegal and then that will stop the activity, I think is not there.”
Bella Pori, associate director of state policy at Reproductive Freedom for All, said the FDA's failure to defend the drug's safety was troubling and politically motivated. “They were making a lot of procedural arguments about why this case should be thrown out of court, but … there are hundreds of studies backing up [mifepristone’s] safety,” she said, adding that “Trump’s FDA is cowing to anti-abortion extremists who are demanding a baseless and unscientific review.”
A district court judge in Louisiana has set an Oct. 7 deadline for a status update on the FDA review, just weeks before the election, though the detail of that update remains unclear. As the legal battle continues, the outcome could have significant implications for abortion access across the country, potentially affecting the political landscape in midterm races and the White House's careful handling of the issue.
