AILSA CHANG, HOST:
There are developments today in a legal case that could affect access to a key abortion medication. A group in Texas sued the FDA over its approval of mifepristone. Today, a panel of judges at the 5th Circuit Court of Appeals in New Orleans agreed with some of their arguments.
NPR's Selena Simmons-Duffin has been reading the decision and joins us now. Hey, Selena.
SELENA SIMMONS-DUFFIN, BYLINE: Hi, Ailsa.
CHANG: OK. So first of all, does this ruling change anything in terms of access now to mifepristone?
SIMMONS-DUFFIN: No, nothing changes because of this ruling.
CHANG: OK.
SIMMONS-DUFFIN: The Supreme Court has already said that the status quo will remain in effect until it decides whether or not to take up the case. So...
CHANG: Got it.
SIMMONS-DUFFIN: ...Mifepristone - still available.
CHANG: OK, so no immediate impact. Then what did the federal appeals court decide here?
SIMMONS-DUFFIN: Well, the challengers here are medical groups and individual physicians that oppose abortion, and the panel sided with them. The court was asked to throw out FDA's original approval of mifepristone, which was way back in 2000, and the changes that it made to how the medicine is prescribed in 2016 and 2021. So the panel of judges here said 2000 was too long ago; we're not going to go there. But they did accept the argument that the FDA shouldn't have changed the prescribing rules, and they would turn back the clock to 2016. So I called up Greer Donley to talk about this. She's a health law professor at the University of Pittsburgh.
GREER DONLEY: If this order does go into effect, it would still cause pretty significant changes to the status quo in terms of how pills are accessed in this country.
SIMMONS-DUFFIN: And that includes access to this medication in states where abortion is legal and protected. So if this order stands, it would mean no telemedicine appointments for mifepristone and no access to the drug after the very first weeks of pregnancy anywhere in the country.
CHANG: Whoa. OK. Was this decision a surprise?
SIMMONS-DUFFIN: Not at all. So the panel had already issued a preliminary ruling on this case that was similar. And in the hearing, the three judges, who were all appointed by Republican presidents, really hammered the attorneys for the FDA and the pharmaceutical company behind mifepristone. The Alliance Defending Freedom, which is representing the plaintiffs, was thrilled by this ruling and called it a significant victory. The Department of Justice released a statement saying it strongly disagrees with the decision and will be seeking Supreme Court review.
CHANG: OK. Well, I know that you have been reading this decision, which I understand is, like, 93 pages long. What stands out to you so far?
SIMMONS-DUFFIN: Well, one really interesting thing about this case is how the plaintiffs explain that they have standing to sue the FDA. They argued mifepristone has side effects, even though the complication rate is very low, and that they as doctors have had to treat patients with those side effects in the past and might have to again in the future. Mary Ziegler is a legal historian at UC Davis.
MARY ZIEGLER: The opinion dedicated over 35 pages to standing and relatively little to the merits of the case. And that's no accident.
SIMMONS-DUFFIN: She says the 5th Circuit judges spent so much time on this because it's a weak part of the case. She says if doctors say they might be harmed if people take a medication that they're morally opposed to and then have side effects, then the approval of many drugs could be challenged, like, you know, take, for example, Viagra.
ZIEGLER: If you're a doctor, and you've treated someone who's had a complication from Viagra in the past and you feel that that offended your moral or religious beliefs, you can say you have standing to challenge the approval of the drug by saying it could happen again.
SIMMONS-DUFFIN: She says that's a really broad theory of standing.
CHANG: Yeah.
SIMMONS-DUFFIN: So in addition to the big effect this case could have on abortion access, it could have a big impact on who can sue on any range of issues.
CHANG: Isn't there a separate case about mifepristone in the courts right now? Like, what's that one about?
SIMMONS-DUFFIN: Right. So attorneys general from several Democratic-led states sued the FDA from the other direction and said these rules were too restrictive. That was heard in Washington state. It has not reached an appeals court yet.
CHANG: OK.
SIMMONS-DUFFIN: Ziegler says the conflicting lower court rulings make it more likely the U.S. Supreme Court is going to have to take this up. And so that's what we're waiting for next.
CHANG: Wait and see - that is NPR's Selena Simmons-Duffin. Thank you so much, Selena.
SIMMONS-DUFFIN: Thank you, Ailsa. Transcript provided by NPR, Copyright NPR.
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