Fifth Circuit to hear Louisiana challenge to mail-order abortion pills

The case challenges the FDA's 2023 decision to eliminate an in-person dispensing requirement for mifepristone, allowing the abortion drug to be prescribed remotely and sent through the mail.

Louisiana is not challenging the FDA's original approval of mifepristone, which dates back to 2000. Instead, Attorney General Liz Murrill's office argues the agency did not adequately justify loosening the drug's restrictions and that the change has made Louisiana's near-total abortion ban considerably harder to enforce.

At a February hearing in Lafayette, Louisiana Solicitor General Benjamin Aguinaga said there was "no dispute that approximately a thousand abortions are occurring every month in Louisiana by mail-order drugs." He argued each represented both a violation of state law and an injury to Louisiana.

The estimate comes from abortion-tracking data Louisiana has described as the best information available and has been cited as well by the United States Supreme Court. During questioning, Aguinaga acknowledged the state could not say "with scientific certainty" how many abortions would occur without the 2023 FDA policy.

U.S. District Judge David Joseph noted that demand for abortion pills would remain even if Louisiana prevailed, comparing the problem to efforts to stop other prohibited drugs from entering a state.

"If there's a demand, there's going to be supply," Joseph said. He added that restoring the requirement might reduce violations of Louisiana law, "but I don't know that ultimately it would make any difference."

Aguinaga countered that an in-person requirement would at least substantially reduce the ability of doctors in states such as New York and California to prescribe and mail mifepristone into Louisiana. The state has separately pursued arrest warrants, indictments and extradition requests against some out-of-state doctors accused of sending the drugs into Louisiana.

The drug manufacturers, Danco Laboratories and GenBioPro, argue Louisiana lacks standing to challenge the FDA policy. Danco told Joseph the federal rules do not invalidate Louisiana's abortion restrictions and argued the state's alleged injuries result from independent decisions by patients, doctors and other states rather than the FDA itself.

The Trump administration has taken a different tack. Rather than defend the 2023 policy on its merits at the February hearing, federal attorneys asked Joseph to pause the litigation while FDA conducts a new review of mifepristone, arguing drug-safety questions should first be considered by the agency charged with answering them.

Joseph ultimately stayed the case in April and denied Louisiana's request for immediate relief. Louisiana appealed.

On May 1, the Fifth Circuit sided with the state and temporarily suspended the 2023 dispensing rules, finding Louisiana was likely to prevail.

That victory was short-lived. Danco and GenBioPro appealed to the U.S. Supreme Court, which on May 14 froze the Fifth Circuit's order while the appeal proceeds. Justices Clarence Thomas and Samuel Alito dissented. The Supreme Court did not resolve the merits of Louisiana's challenge.

For now, the 2023 rules remain in effect — and mifepristone can continue moving through the mail into Louisiana while the courts decide whether the FDA lawfully opened that door.