AUSTIN, Texas (AP) – A federal appeals court has preserved access to abortion drugs today but under stricter rules that allow the drug to be provided only for up to seven weeks, not 10, and not by mail.
The drug, mifepristone, was approved for use by the Food and Drug Administration more than two decades ago. It is used in combination with another drug, misoprostol. The 5th U.S. Circuit Court of Appeals in New Orleans ruled Wednesday just before midnight.
By a vote of 2-1, a panel of three judges narrowed to present the decision of a lower court judge in Texas that has completely blocked the FDA approval of the drug after a lawsuit by opponents of mifepristone.
The lower court’s ruling has been adjourned for a week to allow an appeal.
According to the appeals court’s order, the FDA’s initial approval for mifepristone in 2000 was allowed to remain in effect.
But changes made by the FDA since 2016 relaxing the rules for prescribing and dispensing mifepristone will be retained. This includes extending the period of pregnancy during which the drug can be used and also allowing it to be distributed by mail, without having to visit the doctor’s office.
The two judges who voted to tighten the ban, Kurt Engelhardt and Andrew Oldham, were both appointed by former President Donald Trump. The third judge, Catharina Haynes, is a representative of former President George W. Bush. He said he would temporarily stay the lower court’s ruling to allow for oral arguments in the case.
The decision could still be appealed to the US Supreme Court. In the meantime, Democratic leaders in states where abortion has remained legal since the Supreme Court overturned Roe v. Wade last year said they are preparing in small mifepristone to be limited.
New York Governor Kathy Hochul said Tuesday that her state would stockpile 150,000 doses of misoprostol, another drug used in medical abortions.
Pharmaceutical executives this week also signed a letter condemning the Texas decision and warning that FDA approval of other drugs could be at risk if U.S. District Judge Matthew Kacsmaryk’s ruling is upheld. There is no precedent for a single judge overturning a medical recommendation from the FDA.
The lawsuit challenging the mifepristone approval was brought by the Alliance Defending Freedom, which was also involved in the Mississippi case that led to Roe v. Wade being overturned. At the heart of the lawsuit are allegations that the FDA’s initial approval of mifepristone was flawed because the agency did not adequately review safety risks.
Mifepristone has been used by millions of women for the past 23 years, and complications from mifepristone occur at a lower rate than problems with removing wisdom teeth, colonoscopy and other routine procedures, medical groups recently noted.
Gresko reported from Washington. Associated Press writer Mark Sherman also contributed from Washington.