A federal appeals court ruled Wednesday that the Food and Drug Administration failed to address safety concerns when it made the abortion pill mifepristone easier to obtain back in 2016 — a win for abortion opponents.
The drug, however, will remain available under current FDA regulations while the suit is pending, due to a Supreme Court ruling earlier this year.
The most recent decision came out of the conservative U.S. Court of Appeals for the 5th Circuit.
A three-judge panel of the court said that mifepristone should remain available under the rules that were in place from 2000 to 2016, when the FDA loosened regulations around the drug. The panel agreed with the conservative petitioners who said the agency overlooked certain safety risks, even though the drug has been in wide use for more than two decades.
Among the 2016 updates the panel sought to reverse was an expanded window during which pregnant patients can use mifepristone, from up to seven weeks’ gestation to 10 weeks.
They said that challenges to the FDA’s 2000 approval were likely to fail for varying reasons.
Mifepristone is part of a two-drug regimen to end a pregnancy, which many people choose to take from the comfort of home.
The Justice Department is expected to argue the case up to the U.S. Supreme Court.
Although the high court ruled in favor of the FDA in April, the decision was very limited; the justices have not yet been asked to fully weigh the arguments from both sides on the nationwide availability of mifepristone.
The case originated in Texas, where it was brought by anti-abortion medical groups.
U.S. District Judge Matthew Kacsmaryk ruled that the FDA “manipulated and misconstrued” parts of the drug approval process in order to “greenlight elective chemical abortions on a wide scale,” language that mimicked anti-abortion activist rhetoric that was used in the suit.
His decision was roundly criticized for improperly challenging the federal drug agency’s expertise.
One of the 5th Circuit judges, James Ho — an appointee of former President Donald Trump — said that he would have affirmed Kacsmaryk’s decision in full.