A federal appeals court in Louisiana is set to hear oral arguments Wednesday in a high-profile case that could limit access to a drug used in nearly two-thirds of abortions in the United States.
The court action over whether the abortion and miscarriage drug mifepristone can continue to be distributed through the mail and telemedicine appointments, coming weeks before the midterms, is legally and politically thorny for the Trump administration.
Health Secretary Robert F. Kennedy Jr. promised GOP state attorneys general a year ago that the Food and Drug Administration would review mifepristone’s safety. But the effort initially stalled amid sharp Trump administration divisions over how to handle the divisive issue in an election year.
The Justice Department is defending a Biden administration policy on mifepristone on procedural grounds at this stage, but Attorney General Todd Blanche told lawmakers during his confirmation hearing in July that the administration wants to reinstate restrictions on the drug.
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Previously, patients could only get mifepristone at in-person doctor visits. The state of Louisiana, which sued the FDA last fall to reverse the Biden policy, has now asked the 5th U.S. Circuit Court of Appeals to side with it on a procedural issue as the case appears destined to return to the Supreme Court.
In its initial complaint, Louisiana argued Biden-era regulators expanded access without properly considering potential safety risks. The state also claimed the policy violated the Comstock Act, which generally bars mailing of abortion drugs.
More than 20 interest groups on both sides of the abortion debate have since intervened in the case, along with the drugmakers. After ping-ponging through the court system over the past year, oral arguments will be heard by a panel of three judges — appointees of former presidents George W. Bush, Barack Obama and Joe Biden.
The case has the potential to reshape access to medication abortions, which have become the most common method for terminating a pregnancy in the four years since the Supreme Court’s conservative majority ended the constitutional right to an abortion.
“This case isn’t just about Louisiana — it could make it much harder to get abortion pills in every state, from New York to California,” said Nancy Northup, head of the Center for Reproductive Rights. “This is not simply about convenience — for many people, telehealth could be the difference between getting an abortion and not.”
Much of the case hangs on when the Trump administration will finalize its review of mifepristone. A U.S. district judge in the underlying court case challenging the policy ruled in April that Louisiana was likely to succeed on the merits but that the litigation should be paused while the FDA conducted its review.
The FDA is required to update a district court by Oct. 7 on its progress. Anti-abortion activists say they’re still not sure whether much has been done. “Hopefully it started,” said Tom McClusky, director of government affairs for CatholicVote.
One GOP Senate staffer, granted anonymity because he wasn’t authorized to speak to the press, said: “We get the clear sense that the White House doesn’t want the report to be finalized until after Election Day.”
An FDA spokesperson told NOTUS the agency is undergoing the review. “The FDA is conducting a safety study of mifepristone and is performing a review of the mifepristone REMS [Risk Evaluation and Mitigation Strategy],” the spokesperson said. “The FDA cannot comment on potential future actions or decisions.”
Acting FDA Commissioner Kyle Diamantas called anti-abortion leaders after he took the agency’s helm last spring to assure them he’d make it happen. They said they’re hopeful that Heidi Overton, President Donald Trump’s nominee for permanent commissioner, will move the study along quickly.
Activists also hope the FDA review provides the agency with justification for reinstating the in-person dispensing requirements.
And some Republican lawmakers are looking for Blanche to follow through on the legal side. Sen. Josh Hawley (R-Missouri) pressured Blanche during a confirmation hearing in July to explain why the Trump administration had left the Biden administration’s policy in place.
Hawley asked how Blanche planned to help Republican-led states out of a tangle of litigation with the Trump administration over abortion pill access. In addition to Louisiana, several other states have challenged the approval of mifepristone or the loosening of access rules.
“We are not defending what Biden did, and will not,” Blanche said, adding that the Justice Department intended to let the FDA finish its mifepristone review.
“We’re trying to let FDA — we, meaning the Department of Justice — do their work, so that we can continue to protect the lives of the unborn children and frankly the states’ laws, like Missouri’s, which is really what’s being violated here,” Blanche testified.
Blanche’s remarks line up closely with what the Justice Department’s appellate attorneys wrote in their briefs in the 5th Circuit case. Taking a technical approach to the legal issues at play, they argued that the judges should preserve the status quo and put the litigation on hold while the FDA completes its review.
Louisiana’s lawyers, however, quoted Blanche’s own words to try to persuade the judges to rule the opposite. Blanche, they wrote, was “exactly right” when he told lawmakers the policy undercut the state’s laws.
Mifepristone, developed in the 1980s, is administered in the first 10 weeks of pregnancy and works by preventing the uterus from retaining a fertilized egg. It’s one of two pills typically taken for a medication abortion.
The pills and their broad availability through the mail have kept abortion accessible to women in states with abortion bans after the Supreme Court overturned Roe v. Wade in 2022. Under 2023 Biden administration rules, women can order the pills from a doctor in another state.
Anti-abortion activists are trying to put an immediate stop to that practice, asking Blanche to settle Louisiana’s lawsuit and block the mailing of the pills.
“Mail-order mifepristone has become a public health crisis in our country,” said Kelsey Pritchard, communications director for Susan B. Anthony Pro-Life America. “This is the opportunity to end the problem.”
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