A Right-Wing Court Just Moved to Choke Off Abortion by Mail

A federal appeals court packed with conservatives has handed abortion opponents a major victory against the US Food and Drug Administration, effectively reinstating an in-person dispensing requirement for the abortion medication mifepristone and likely shutting down telemedicine providers from prescribing the abortion pill across the US.

In a 3-0 order issued Friday afternoon, the Fifth US Circuit Court of Appeals granted Louisiana’s request for an injunction against FDA rule changes from 2023 that have allowed blue-state telehealth providers to send mifepristone to thousands of patients every month in states where abortion is banned. At least temporarily, the ruling could severely disrupt the availability of mifepristone nationwide. The ruling, however, does not affect misoprostol, the second medication used with mifepristone to terminate pregnancies—and a powerful abortion drug on its own. Nonetheless, the ban will have the greatest impact on women in the dozen or so states—many in the South—where lawmakers and attorneys general have sought to end access completely.

The 2023 telemedicine rule change “injures Louisiana by undermining its laws protecting unborn human life and also by causing it to spend Medicaid funds on emergency care for women harmed by mifepristone,” Judge Stuart Kyle Duncan wrote for the court. “Both injuries are irreparable.”

“Every abortion facilitated by FDA’s action cancels Louisiana’s ban on medical abortions and undermines its policy that ‘every unborn child is a human being from the moment of conception and is, therefore, a legal person,'” Duncan wrote. He was appointed to the Fifth Circuit by President Donald Trump in 2017.

“Telehealth has been the last bridge to care for many seeking abortion, which is precisely why Louisiana officials want it banned,” said Nancy Northup, president and CEO of the Center for Reproductive Rights. “This isn’t about science—it’s about making abortion as difficult, expensive, and unreachable as possible. Telehealth has transformed healthcare. Selectively stripping that away from abortion patients is a political blockade.”

Louisiana Attorney General Liz Murrill filed her lawsuit last fall, arguing that the Biden administration’s decision to drop the in-person dispensing rule was “arbitrary” and “capricious,” and that abortion pills are too risky to prescribe remotely, even though scores of studies around the globe have proven otherwise. She also claimed the rule change was “avowedly political”—that is, it explicitly intended to get around the Supreme Court’s decision in the 2022 Dobbs decision overturning Roe v. Wade, and interfered with Louisiana’s right to regulate abortion as it sees fit.

In April, US District Judge David Joseph—also a Trump appointee—put the lawsuit on hold pending the FDA’s own review of mifepristone’s safety, which has been underway since last fall. Even though the Trump administration has made clear its own concerns about the rules changes, it has argued that rolling back the Biden rules while the review is ongoing amounts to “judicial intervention” in the agency’s long-established drug review process. It added that an injunction “may prove as unnecessary as it is disruptive, if FDA ultimately decides that the in-person dispensing requirement must be restored.”

But abortion opponents saw that study as a delaying tactic by a White House worried about the impact that cutting off access to abortion pills might have on the GOP’s already grim prospects in the midterm elections. Murrill quickly appealed to the Fifth Circuit, which encompasses Louisiana, Texas, and Mississippi—one of the most conservative federal jurisdictions in the country.

It is the same appeals court that ruled in a similar but separate lawsuit three years ago that the FDA exceeded its authority when it relaxed an assortment of restrictions on mifepristone during the Obama and Biden administrations, including the telemedicine rule. The Supreme Court eventually rejected that case, because the anti-abortion doctors who brought it didn’t have standing to sue. But the SCOTUS ruling did not address the far bigger and thornier issue of whether the FDA’s rule changes were legal.

In Friday’s ruling, the Fifth Circuit panel harkened back to its earlier decision.

“Our court has previously concluded that [the] FDA’s actions here were likely unlawful,” Duncan wrote in Friday’s ruling. The same reasoning, he said, “squarely applies” to the 2023 telemedicine rule change.

The ruling “will hit Latine and immigrant communities hardest,” predicted Lupe Rodríguez, Executive Director of the National Latina Institute for Reproductive Justice. “Medication abortion by mail is one of the few ways people can overcome systemic barriers to care…Taking it away is deliberate and dangerous and puts politics over the health and well-being of our communities.”

Even as they decried the Fifth Circuit’s ruling, abortion rights advocates insisted that they have been making contingency plans for just such a scenario—including ramping up efforts to switch to a different abortion-pill regimen that doesn’t include mifepristone.

“There’s no world in which this genie goes back in the bottle.”

“We will do everything in our power to continue providing care to people in all 50 states,” said Dr. Angel Foster, co-founder of the Massachusetts Medication Abortion Access Project, a telemedicine provider that serves more than 3,000 patients a month. “We remain committed to ensuring that people can get the care they need, when they need it.”

Legal scholars also doubted that the flow of abortion pills could be completely cut off. “Abortion is too important,” says Greer Donley, a law professor at the University of Pittsburgh and shield law expert who specializes in medication abortion. “People are going to find ways around the law because [the ability to access care is] so critical to someone’s identity and autonomy and self-determination. There’s no world in which this genie goes back in the bottle.”

Developed by French researchers in the 1980s, mifepristone is one of two drugs that make up the standard abortion-pill protocol in the US. It works by blocking the production of progesterone, the main hormone needed to support a developing pregnancy. A second drug, misoprostol, then causes the uterus to contract, expelling the embryo. Misoprostol—available over the counter in many countries to treat stomach ulcers—has also been shown in numerous global studies to be a safe and effective abortifacient on its own.

The anti-abortion movement fought hard to keep mifepristone out of the US, claiming it was—and remains—too dangerous. (Hundreds of studies over the past 40 years have found otherwise.) When the FDA finally gave its approval to the drug in 2000, it imposed a series of restrictions, including limiting mifepristone’s use to early in the first trimester. The rules became even more stringent in 2011 when mifepristone was consigned to a new program—known as Risk Evaluation and Mitigation Strategy, or REMS—normally reserved for the most dangerous drugs.

But the Obama-era FDA, buoyed by still more studies confirming the drug’s safety, began easing those restrictions in 2016, including allowing mifepristone to be used up to 10 weeks’ gestation and slashing the recommended dosage by two-thirds. In 2021, at the height of the pandemic, the FDA suspended the in-person office-visit requirement, and in 2023, it made the telehealth change permanent. The new FDA rules also made mifepristone more readily available in pharmacies.

In the four years since Dobbs, the revised rules have made it possible for large numbers of red-state patients —some 15,000 per month, according to the most recent data from the #WeCount project—to continue obtaining abortion pills despite draconian bans. Medication now accounts for almost two-thirds of abortions in the US, facilitated by shield laws—statutes that protect abortion providers in blue states who care for patients living in places where abortion is illegal. More than a quarter of all US abortions now occur via telemedicine. In 2025, approximately 142,000 people crossed state lines to access abortion care, or about 13 percent of all abortion patients in the US, according to the latest data from the Guttmacher Institute.

The growing availability of mifepristone has enraged the anti-abortion movement, which was counting on Trump 2.0 to take quick action to stop the flow of pills. But so far, administration officials have resisted pressure to rescind the FDA’s approval of mifepristone or revive the Comstock Act, a Victorian-era obscenity law, unenforced for decades, that prohibits the mailing of abortion drugs, supplies, and equipment.

So red-state attorneys general and other anti-abortion activists have escalated their own attacks in court. Murrill has been a leader in those efforts, trying to extradite abortion providers in New York and California to face criminal charges, without success, and threatening to sue those states over their shield laws. Louisiana has some of the toughest abortion restrictions in the country, yet telemedicine providers are mailing close to 1,000 packages of abortion pills to patients in the state every month.

In targeting the FDA, Murrill accused the Biden administration of making the 2023 rule change for political reasons, as part of a broader effort to thwart the Dobbs decision and “ensure that mifepristone is as widely accessible as possible.” She said the telemedicine rule exceeded Biden’s authority, violated the Comstock Act, and is causing Louisiana “irreparable harm” as long as it remains in effect, in part by forcing the state to bear the costs of Medicaid patients who suffer complications as a result of the pills’ use.

The Fifth Circuit panel cited those Medicaid costs as one of the reasons Louisiana had standing to sue. “Louisiana identifies $92,000 it paid in Medicaid costs from two women who needed emergency care in 2025 from complications caused by out-of-state mifepristone,” Duncan wrote. “Such costs will almost certainly continue because nearly 1,000 women monthly—many of whom are on Medicaid—have mifepristone-induced abortions in Louisiana.”

“We reject the argument that Louisiana was required to administratively exhaust its claims before bringing this suit. The agency’s 2023 REMS causes “federal interference with the enforcement of [Louisiana] law,” which gives Louisiana standing to challenge it…We conclude Louisiana has strongly shown a likelihood of winning its APA challenge to the 2023 REMS.”

In seeking a nationwide injunction, Murrill also claimed telemedicine makes it too easy for women to be tricked or coerced into having abortions they don’t want. Joining her as a co-plaintiff in the case is a Louisiana day care employee named Rosalie Markezich, who alleged that her ex-boyfriend used her email address to order drugs from a California doctor, then forced her to take the medication against her will. Markezich is represented by the Alliance Defending Freedom, a religious-right legal powerhouse that has played a pivotal role in most of the significant anti-abortion and anti-LGBTQ policy and court battles of recent years.

ADF also represented the anti-abortion doctors who challenged the FDA’s initial approval and regulation of mifepristone in the blockbuster case that went to the Supreme Court in 2024. While justices ruled 9-0 in that case that the doctors did not have standing to sue the FDA, it left open the possibility that other plaintiffs might. Louisiana and Markezich argue that they do have standing. The FDA and companies that manufacture mifepristone contend otherwise.

In his April 7 ruling putting Murrill’s lawsuit on hold, Joseph ordered the FDA to conduct its safety review of mifepristone with “deliberate speed.” At a hearing earlier, he was skeptical of Murrill’s arguments that issuing an injunction on telehealth would stop the flow of abortion pills. “The war on drugs has been going on for 50 years,” Joseph pointed out, “and yet there was more cocaine produced last year than any other.”

Donley, the law professor, agrees that abortion opponents are fooling themselves if they think any US court will be able to cut off access to abortion pills. “You shut off access to mifepristone, people will switch to misoprostol-only abortions,” she says. “Even if you were to shut down shield providers in this country, people would just switch to international providers and start shipping from other countries.”

Likely to President Trump’s dismay, Mary Ziegler, an abortion historian and law professor at the University of California, Davis, this ruling suddenly makes abortion a huge issue in the midterm elections. Telemedicine “has been why people in abortion-ban states have been able to get access to abortion,” she said. “It’s been the centerpiece of absolutely everything.” She added that voters who have been showing signs of complacency over the abortion issue, thanks in large part to telemedicine, won’t be any longer.

“