Naomi Cahn and Sonia M. Suter write:

On Friday, the archconservative U.S. Court of Appeals for the 5th Circuit issued a stunning nationwide injunction that directly affects one-fourth of all abortions in the United States. The opinion rejected an Food and Drug Administration regulation allowing people to buy mifepristone, a drug used for medication abortion and miscarriage management, by mail. This ruling applies nationally, even in states that haven’t banned abortion. On Monday, the Supreme Court issued a temporary hold, meaning that mifepristone can still be mailed—for now.

The 5th Circuit’s ruling echoes one from three years ago, also released on a Friday. But this is not déjà vu. Three years ago, President Joe Biden’s FDA appealed the 5th Circuit decision to the Supreme Court to try to maintain access to mifepristone (and succeeded). This time, the Trump administration is complicit in the circuit court’s ruling, while trying to stay under the radar.

To make sense of the administration’s efforts to thread the needle in undermining access to mifepristone, it’s helpful to understand how the FDA regulates it. The agency first approved mifepristone in 2000, after evaluation of rigorous studies demonstrating its effectiveness and safety. The FDA initially required mifepristone to be prescribed in person and taken at a doctor’s office. Over time, and after even more extensive review of safety data, the agency changed some of these restrictions. Most notably, it allowed access via telehealth during the pandemic, making that change permanent in 2023. As a result, abortion pills could be mailed. This is what’s now under threat—the 5th Circuit ruling undoes this rule and would prevent the mailing of mifepristone via telehealth. Given that this rule has been a life preserver for women in need of reproductive care in abortion-ban states, the results could be devastating. It would also affect patients in states without any abortion ban in place. [Continue reading…]