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The entire congressional Democratic caucus filed an amicus brief urging a federal appeals court to retain the Food and Drug Administration’s current rules for prescribing abortion pills.
Forty-seven Democratic senators and 212 House members asked the U.S. Court of Appeals for the 5th Circuit not to reinstate an in-person requirement to obtain mifepristone, which has not been enforced in five years.
The brief was filed in an ongoing case brought by Louisiana, which sued the Food and Drug Administration (FDA) to restrict access to mifepristone. The state objected to a 2023 FDA regulation that allowed mifepristone to be prescribed through telehealth, in pharmacies and through the mail.
“Louisiana’s requested relief has no basis in law, threatens the congressionally mandated evidence-based process for drug-regulatory decisions, and poses a serious health risk to pregnant individuals,” the Democrats wrote.
A federal trial court denied Louisiana’s request to temporarily reinstate the requirement while the case proceeds. Louisiana appealed, and the 5th Circuit granted Louisiana’s request, disrupting access and creating upheaval for patients, providers, pharmacies, as well as two of the manufacturers of mifepristone.
The Supreme Court later paused the 5th Circuit’s ruling, allowing people to continue to fill their mifepristone prescriptions by mail and at pharmacies after receiving care through telemedicine while the case is litigated.
The case is now back before the 5th Circuit, which will hold oral arguments in September.
“Decades after FDA’s initial approval of mifepristone and years after the in person dispensing requirement was eliminated, Louisiana now seeks to re-impose this onerous nationwide restriction on all Americans. Granting such relief would undermine the science-based statutory framework Congress requires and threatens patient access to reproductive health care,” the Democrats wrote.
They argued Louisiana shouldn’t be able to dictate policy to all other states.
“Louisiana is free to make its own laws governing its citizens, but should not be permitted to undermine the FDA’s process,” the lawmakers wrote.
Mifepristone has been used as part of the most common and recommended regimen for medication abortion for more than 25 years.
In the wake of the Supreme Court’s ruling ending Roe v. Wade, abortion opponents have grown frustrated with the wide availability of mifepristone, which is typically used as part of a two-drug combination for medication abortion.
Mail-order pharmacies, combined with blue state “shield laws” protecting clinicians from prosecution, have helped women maintain access even as conservative states ban or severely limit access to abortion clinics.
As a result, abortions have increased despite the end of Roe.
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