Mifepristone litigation:

On May 17, a three-person panel of judges in the New Orleans-based Fifth Circuit Court of Appeals held oral arguments regarding a Texas judge’s April decision to take mifepristone, a medication used in more than half of U.S. abortions, off the shelves by its longstanding FDA approval. The court entertained arguments from attorneys representing the group that sued to remove mifepristone from market (The Alliance for Hippocratic Medicine) and attorneys for both the Department of Justice and the makers of the drug’s generic version, challenging the decision.

The panel appeared sympathetic to the plaintiff’s arguments and is expected, though not guaranteed, to hand down a ruling that restricts if not bans access to mifepristone. The court could also impose additional limitations on abortion access. The decision is being closely watched not only for its impact on access to this drug but for its potentially broad implications for the FDA’s drug-regulation authority. The DOJ and others, including ASRM through amici (friend of the court) briefs joined by other leading medical organizations, have warned that upending a decades-old drug approval process may have a devastating impact on access to medication for any number of conditions and needs.

Regardless of how it rules (notably, there is no deadline for the court to do so), this is expected to be just another step in a prolonged appeals process that is apt to end up before the Supreme Court. A resolution could be as far as a year away and we continue to monitor and will share developments.

Recent state actions (note: some discussed below go beyond abortion-specific measures):

• South Carolina: On May 24, the South Carolina legislature approved a 6-week abortion ban that the Republican governor is expected to sign into law. The bill includes exceptions for instances of rape and incest, allowing in those cases for abortion up to 12 weeks. The state’s only five female Senators, calling themselves the “Senate Sisters” vehemently opposed passage of the measure. South Carolina Governor Henry McMaster signed the bill into law on 5/25/23.
• Nebraska: On May 22, the state’s Republican governor signed into law a measure banning abortion at 12 weeks of pregnancy and restricting gender-affirming medical care for those under 19. The abortion ban takes effect immediately. It includes exceptions for rape, incest, and to save the life of a mother.
• North Carolina: North Carolina passed a measure that will ban most abortions after 12 weeks of pregnancy beginning July 1. The law makes exceptions for rape, incest, and “life-limiting” fetal anomalies.