Mifepristone Ban Blocked as Matthew Kacsmaryk Suffers Setback

The federal appeals court has voted to preserve access to the abortion drug mifepristone, but with tighter rules.

The ruling follows a preliminary injunction issued by Texas District Judge Matthew Kacsmaryk, ordering the Food and Drug Administration (FDA) to withdraw its approval of mifepristone. The injunction on April 7 could have led to a nationwide ban on the drug.

According to the Fifth Circuit Court of Appeals' ruling, mifepristone—one of two drugs authorized for use as abortion medication, together with misoprostol—will now only be dispensed in the first seven weeks of gestation, instead of 10, and not by mail.

The 2-1 vote in favor of preserving access to mifepristone was made by a panel of three judges in New Orleans just before midnight on Wednesday.

Last week Kacsmaryk, a religious conservative who was appointed by former President Donald Trump, ruled in favor of a November 2022 lawsuit filed by the anti-abortion organization Alliance for Hippocratic Medicine against the FDA.

The lawsuit argues that the agency "never" had the authority to approve the use of mifepristone and its approval should be rescinded. The appeals court's ruling means the FDA's approval of mifepristone, issued in 2000, remains effective.

The Fifth Circuit Court of Appeals had been expected to vote in favor of the Texas judge's ruling. But Kurt Engelhardt and Andrew Oldham, both Trump appointees, voted to tighten restrictions instead of blocking access to the drug.

The third judge, Catharina Haynes, said she would have put the Texas ruling on hold. Haynes was appointed by former President George W. Bush.

The loosening of the rules around prescribing and dispensing mifepristone, which began in 2016, will now be placed on hold. This means women seeking an abortion will be forced to make in-person visits to receive the medication.

The FDA approved mail-order abortion pills in 2021, making permanent a temporary rule change introduced during the pandemic.

Mifepristone is the most common method used to terminate a pregnancy in the U.S. and is also used to help manage miscarriages.

The appeals court's decision on the drug will likely be appealed to the U.S. Supreme Court, experts told Newsweek. The Justice Department could also intervene to ask the Supreme Court to block Kacsmaryk's ruling, a move that would only pass with the support of at least five of the nine justices.

The Supreme Court has a 6-3 conservative majority and five of its justices voted to overturn Roe v. Wade last June.

But Lawrence Gostin, a professor of global health law at Georgetown University, said it was unlikely the Supreme Court would side with Kacsmaryk.

"This judge's ruling is so clueless about the law, science and public health, I think the court will ultimately side with the FDA even if the ruling is narrow," he told Newsweek.

Update 04/13/23 4:45 a.m. ET: This article has been updated to add more information.