Appeals Court Rejects Abortion by Mail

Aug 16, 2023

NEW ORLEANS, LA – The U.S. Fifth Circuit Court of Appeals ruled that the Food and Drug Administration (FDA) improperly expanded access to the chemical abortion pill mifepristone over the last seven years and reimposed restrictions that doctors must only be in person for dispensing the drug mifepristone. 

In Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, the three-judge panel said that the medical professionals who sued the FDA had likely waited too long to challenge the drug’s original approval in 2000, and it also left in place the agency’s 2019 approval of the generic version of the pill. Yet the appeals court stated the FDA failed to properly scrutinize changes that increased access to mifepristone in recent years, such as allowing the drug to be administered without an in-person visit with a medical provider, including by mail. 

The Court wrote, “Although mifepristone was effective for most patients, the studies showed a trend of adverse events for some women. According to FDA, ‘sur[1]gical intervention’ was required in 7.9% of the subjects in the American trial and 4.5% of subjects in the French trials. The reasons for surgery included heavy bleeding, infection, incomplete abortion, and ongoing pregnancy— meaning that the embryo or fetus continued to grow and develop.” 

“The FDA’s 2021 Mail-Order Decision violates the Comstock Act. That decision authorizes the dispensing of mifepristone 'through the mail . . . or through a mail-order pharmacy'…FDA Letter to American College of Obstetricians and Gynecologists at 2 (Apr. 12, 2021). But 'us[ing] the mails for the mailing' of a 'drug . . . for producing abortion' is precisely what the Comstock Act prohibits," wrote Judge Ho in his concurrence to the Court's opinion.

Liberty Counsel filed an amicus brief to the U.S. Fifth Circuit Court of Appeals in the case Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration, in which pro-life medical groups assert the federal government improperly approved the chemical abortion drug mifepristone and has illegally distributed it harming women and girls.

Liberty Counsel filed the amicus brief on behalf of the Frederick Douglass Foundation and the National Hispanic Christian Leadership Conference which have a strong interest in exposing the racist and eugenic history of the FDA’s chemical abortion regimen that has had catastrophic effects on their communities. 

Liberty Counsel’s amicus brief states, “The abortion movement in the United States is rooted in eugenics ideology, which seeks to eradicate those who are deemed unfit or undesirable. The advocacy for mifepristone and its subsequent approval by the FDA is a continuation of that eugenic legacy…[mifepristone is] a chemical abortion regimen that indisputably targets Black, Hispanic, and disabled communities and furthers a eugenic ideology.” 

As for Alliance for Hippocratic Medicine v. FDA, U.S. District Court Judge Matthew Kacsmaryk previously ruled that the FDA improperly approved mifepristone in 2000 despite “legitimate safety concerns,” and issued a preliminary injunction suspending the agency’s approval of the drug and blocked the FDA’s subsequent actions to make it widely accessible through mail order and telemedicine prescriptions. The Biden administration immediately appealed asking the Appeals Court to put a hold on that ruling, which it did, staying the lower court’s FDA approval suspension. However, it left the rest of Judge Kacsmaryk’s order regarding prescriptions intact. 

The Biden administration then went to the U.S. Supreme Court requesting that Judge Kacsmaryk’s order be entirely stopped to preserve the status quo while the government’s full appeal continues in the Fifth Circuit. On April 21, the High Court ultimately decided to halt Judge Kacsmaryk’s decision and keep the status quo as the case proceeds to full adjudication at the Appeals Court level. A three-judge panel of the Fifth Circuit is expected to begin hearing the full appeal later this month. 

Mifepristone, part of a two-drug protocol taken with misoprostol, slowly starves a baby to death in the womb over one to two days, and then misoprostol induces labor and causes severe cramping, contractions, and bleeding to expel the baby from the womb. Chemical abortions currently account for more than half of all abortions in the U.S., according to the pro-abortion Guttmacher Institute. 

Liberty Counsel Founder and Chairman Mat Staver wrote, “This is a great decision by the Fifth Circuit to abolish mail-in abortions. Abortion is never safe for the child or the woman.” 

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