On September 9, the US Court of Appeals for the Fifth Circuit in New Orleans heard oral arguments in Louisiana v. U.S. Food and Drug Administration, a case that could restrict access to mifepristone nationwide. Louisiana is challenging changes the FDA made to the drug’s Risk Evaluation and Mitigation Strategy (REMS) in 2023, which removed the requirement that mifepristone be dispensed in person and allowed the medication to be prescribed through telehealth and sent by mail. Mifepristone has been FDA-approved since 2000 and is safe and effective.
Louisiana argues that the FDA’s changes were unlawful and interfere with the state’s ability to enforce its abortion restrictions. In January, Louisiana’s Attorney General Liz Murrill testified before a Senate committee that the “Biden administration knowingly and intentionally undermined Dobbs” by allowing mifepristone to be mailed to patients in states with abortion restrictions.
Since the fall of Roe, the number of clinician-provided abortions has almost doubled, largely thanks to telehealth.
The case could have consequences far beyond Louisiana. Louisiana is seeking to reinstate the in-person dispensing requirement nationwide, which would prevent patients from receiving mifepristone through telehealth, mail, or retail pharmacies. The Fifth Circuit previously ordered the restrictions back into effect in May, but the U.S. Supreme Court paused that ruling, leaving current access in place while the case continues.
Gabrielle McIntyre, Louisiana’s defense attorney from Alliance Defending Freedom, confirmed that the lawsuit’s goal is to end virtual and mail access to abortion pills for the whole country, even in states where abortion is legal. McIntyre insisted, however, that states where abortion is protected would still be able to enforce their “own regulations regarding abortions.”
During the pandemic, the FDA temporarily allowed medical abortion pills to be prescribed through a telehealth appointment. In 2023, the FDA officially revised its rule to allow medical abortion pills to be prescribed virtually. By 2024, one in four abortions were done via a telehealth appointment.
Telehealth can reduce the time, cost, and logistical barriers associated with traveling to an abortion provider. It can be difficult for patients to get to an abortion provider since the average American lives 86 miles from a reproductive health clinic. For women living in abortion-banned states, telehealth is the only way they can get the care and help they need.
Under the current system, a patient in an abortion-banned state such as Louisiana can receive mifepristone through the mail from a provider in a state with a shield law, like Massachusetts. Shield laws are state-level protections for patients, health care providers, and others involved in reproductive health care who may face legal action from another state. Currently, 23 states and Washington, DC, have some form of shield law.
If the FDA’s 2023 rule is ultimately overturned, patients across the country could once again be required to receive mifepristone in person. This will put the health and safety of women and girls all across the country at risk. This ban will not end abortions, it will only lead to a rise in unsafe ones since people will continue to have abortions, whether or not they are legal.
