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Louisiana really wants its 15 minutes of fame—or infamy, as the case may be. Eviscerating minority voting rights nationwide wasn't sufficient; now they want to dictate for the country how women can obtain the drug used in medication abortions.
The state sued the FDA to reinstate the in-person dispensing requirement for mifepristone—one of the drugs, along with misoprostol, used for a medication abortion. In 2023, the FDA formally revised the dispensing requirements to allow doctors and other medical personnel to prescribe mifepristone via telehealth. The drug could then be obtained at a local pharmacy or by mail. Louisiana, where abortion is banned at all stages, claims that the FDA's revisions undermine its ban since patients in Louisiana are receiving the pills by mail. They asked the court to reinstate the in-person dispensing requirement, which would then make mailing mifepristone illegal.
The federal district court agreed that the availability of mifepristone by mail undercuts Louisiana's ban, but declined to stay the federal regulation. Instead, it granted the FDA's request to stay the entire case while it completed its review of the 2023 revisions.
But never fear, the Fifth Circuit is here! In a unanimous ruling by two Donald Trump appointees and one George W. Bush appointee, the appeals court struck down the FDA's revisions allowing the drug to be dispensed remotely and obtained by mail. If this sounds familiar, it should. In 2022, this same circuit upheld a lower court's stay of the informal version of the regulation relaxing the in-person requirement. This was reversed by the Supreme Court, but only on the grounds that the doctors who had brought the suit lacked standing.
In 2023, the revised regulation was formalized and this time, Louisiana's attorney general sued for the state. She argues Louisiana has standing because the state allegedly had to spend Medicaid Emergency care funds to care for women who have allegedly had "complications"—which they erroneously define as a visit to the ER—from taking mifepristone. (Importantly, anti-abortion groups always conflate a visit to the ER with "complications"—usually an ER visit is for pain management or reassurance that all is well, and not a result of any problem or complication.) Even then, Louisiana could only point to two women who visited the ER in all of 2025 after taking mifepristone, out of tens of thousands of medication abortions in the state.
While the Trump administration has so far been defending FDA's actions, it has also provided some helpful ammunition to the plaintiff and the court. In September 2025, Trump's FDA began what it called a "comprehensive review" of the 2023 revisions to the dispensing requirements on the grounds that there was a "lack of adequate consideration underlying the prior approvals." The Court seized on this "admission" to hold that the regulation is likely "arbitrary and capricious" and should be "stayed" until that review was completed. The Court also agreed that Louisiana is "irreparably harmed" by remote prescription because it undermines the state's policy that "every unborn child is a human being from the moment of conception and is, therefore, a legal person." The Court doesn't address why Louisiana's policy takes precedence over the needs and policies of other states.
The effect of the ruling is that it applies nationwide. But wait, how can that be, you may ask, when the Supreme Court doesn't allow nationwide injunctions anymore? Well, this case was brought under the Administrative Procedures Act (APA), 5 USC Sec. 705, and Louisiana asked for a stay of the regulation on the grounds that the FDA failed to follow the proper procedure in approving the 2023 revised regulation. And in Trump v. CASA (the birthright citizenship case, which struck down a nationwide injunction of Trump's XO), the Supreme Court saw this one coming and explicitly carved out an exception for stays of agency actions under the APA. Ta da!
The Supreme Court has since granted a stay of the Fifth Circuit's decision, at least for a week while they take briefing on the topic. But given this Court's overt hostility to medication abortion, it's unlikely to concern itself with issues of consistency in adjudicating FDA drug evaluations. With an assist from the Trump administration, it can also ignore the decades of evidence of mifepristone's safety that underpinned the 2023 revision, and simply accept the new FDA claim that more study is needed. (There are ads that gleefully note all the scary side effects of the drugs to treat, say, moderate to severe plaque psoriasis, but no one's trying to yank those from shelves.)
As for the fate of prescription by telehealth, clinics are already planning a switch to misoprostol only for dispensing by mail if needed. Ironically, using misoprostol only instead of the combination of mifepristone plus misoprostol is only 80% effective and slightly less safe as opposed to the 94% effective rate of the combination drug protocol. But sure, this is all about women's health and safety (cough, cough). If mailing mifepristone is banned, that might just come up a time or two in the midterm campaigns. Who knows? (L)