Fifth Circuit questions Louisiana’s renewed attempt to block abortion pill mailing

Louisiana's effort to reverse the FDA's decision to allow remote dispensing of abortion pills could have significant implications for abortion access nationwide.(CN) — A Fifth Circuit panel questioned Wednesday a request by Louisiana to block the U.S. Food and Drug Administration’s decision to allow the mailing of abortion pills.Louisiana has clarified it’s not asking the panel to block telehealth prescription of abortion pills. Rather, it is asking the judges to stay the FDA’s 2023 decision to remove an in-person dispensing requirement for mifepristone — one of two drugs used in medication abortions — and then, as U.S. Circuit Judge Stephen Higginson put it, to “stay the stay” by suspending the panel’s decision while the U.S. Supreme Court reviews the issue.Higginson, a Barack Obama appointee, questioned whether the panel has the authority to block the FDA’s decision in light of an unreasoned decision by the Supreme Court blocking a prior panel’s decision to stay the FDA’s removal of the in-person dispensing requirement while the Fifth Circuit considered the case, saying Louisiana’s notion of staying the stay “seems a little self-defeating” in light of its argument that it’s facing irreparable harm that merits blocking the FDA’s decision.The panel also discussed whether Louisiana has standing to challenge the FDA’s decision. Louisiana argues it has standing based on Medicaid costs caused by treatment of complications from telehealth abortions and also because the mailing of abortion pills is being used to circumvent Louisiana laws banning abortion.“There’s no dispute that Louisiana’s experiencing 1,000 abortions a month due to mifepristone mailed into the state,” Louisiana Solicitor General Ben Aguiñaga said.But U.S. Circuit Judge Priscilla Richman questioned if there is a direct connection between the FDA’s removal of the in-person dispensing requirement and mifepristone being mailed into Louisiana.“I’m having trouble finding anywhere in the record that the FDA has approved the mailing of this drug into states where it’s unlawful to do that,” the George W. Bush appointee said.U.S. Circuit Judge Dana Douglas, a Joe Biden appointee, joined Richman and Higginson on the panel.In 2021, due to the Covid-19 pandemic, the FDA suspended enforcement of a portion of its Risk Evaluation and Mitigation Strategy for mifepristone requiring the medication be dispensed in person, allowing doctors to prescribe the medication through telehealth and mail it to patients. Two years later, the FDA permanently removed the in-person dispensing requirement.Last year, President Donald Trump’s Health and Human Services Secretary Robert F. Kennedy Jr. announced the FDA would review its decision to allow abortions by mail. Meanwhile, Louisiana filed suit to force the FDA to reinstate the in-person dispensing requirement, arguing the FDA’s determination that it was safe to remove it wasn’t backed up by appropriate data. U.S. District Judge David Joseph of the Western District of Louisiana declined the state’s request for a preliminary injunction reversing the removal of the in-person dispensing requirement.While he agreed the FDA’s decision wasn’t sufficiently supported and that Louisiana was experiencing irreparable harm through financial injury and the undermining of its abortion ban, Joseph found the balance of equities weighed in favor of leaving the removal of the in-person dispensing requirement in place while the FDA completed its review of the decision. The Trump appointee noted issuing a preliminary injunction would result in a nationwide prohibition on telehealth abortions, including in states that oppose such a ban.“At this juncture, it is the completion of FDA’s promised good faith, evidence-based, and expeditious review of the mifepristone REMS, not ‘government by lawsuit,’ that this court finds to be in the public interest,” Joseph ruled.Subscribe to our free newslettersOur weekly newsletter Closing Arguments offers the latest about ongoing trials, major litigation and rulings in courthouses around the U.S. and the world, while the monthly Under the Lights dishes the legal dirt from Hollywood, sports, Big Tech and the arts.Additional Reads