The United States Court of Appeals for the Fifth Circuit has upheld the suspension of mail-order abortion pills and reinstated requirements that the abortion pill be dispensed in person at a clinic or hospital and not at retail pharmacies. While the Court ruled that the abortion pill can remain available, the latest decision would also require that all adverse events related to the abortion pill once again be reported — not just women’s deaths. The abortion pill is estimated to be responsible for the deaths of approximately 5.6 million preborn human beings.
The 2-1 decision released late Wednesday evening granted a partial stay to the Food and Drug Administration (FDA) and Danco (defendants in the lawsuit filed by the Alliance for Hippocratic Medicine) following a ruling by U.S. District Court Judge Matthew J. Kacsmaryk suspending the FDA’s 2000 approval of the abortion pill mifepristone.
“In its decision, the 5th Circuit ruled that abortionists are no longer allowed to send chemical abortion drugs through the mail, which the FDA had been allowing since 2021, in direct violation of longstanding federal law. Additionally, in 2016, the FDA extended the permissible gestational age of the baby for which a girl or woman may take chemical abortion drugs—from seven weeks’ gestation to 10 weeks’ gestation. The 5th Circuit’s order moved that back to seven weeks’ gestation, protecting the mother from adverse complications that increase with gestational age, reinstated necessary doctor visits, and brought back the requirement that abortionists must check women for complications after their chemical abortions,” wrote Alliance Defending Freedom (ADF), which represented the plaintiffs in the case.
It continued, “The 5th Circuit also agreed with Alliance Defending Freedom attorneys that the FDA’s approval of generic mifepristone was unlawful, and that manufacturer must cease production by Friday.”
The 5th Circuit Court panel wrote that it granted stays “only in extraordinary circumstances.” They went on to write, “This rule reflects the fact that ‘a stay is not a matter of right, even if irreparable injury might otherwise result…’ Instead, a stay requires ‘an exercise of judicial discretion.’”
“As the stay applicants, defendants bear the burden of showing why ‘extraordinary circumstances’ demand that we exercise discretion in their favor,” the Court added.
“To the extent the defendants make any such showing, they do so only with respect to the 2000 Approval—not the plaintiffs’ alternative arguments challenging FDA’s 2016 Major REMS Changes and all subsequent actions,” the 5th Circuit stay order reads. REMS refers to the FDA’s Risk Evaluation and Mitigation Strategy safety protocols, which are designed to reinforce medication use behaviors and actions that support the safe use of medications that carry serious safety concerns.
Panel on Court of Appeals addressed Comstock Law provision cited by plaintiffs
“The parties vehemently dispute how their competing interpretations of the Comstock Act of 1873 might impact the validity of the district court’s order. The Comstock Act prohibits the carriage in interstate commerce of ‘any drug, medicine, article, or thing designed, adapted or intended for producing abortion,'” the Court order stated. “It similarly prohibits the mailing of any ‘article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.'”
The Court also wrote, “[…]if the Comstock Act is construed in-line with its literal terms, then Danco cannot say it is irreparably harmed by the district court’s order, because Danco has no interest in continuing to violate the law, which (under a plain view of the Act) it does every time it ships mifepristone. For further example, if the Comstock Act is strictly understood, then applicants may lose the public interest prong entirely, because there is no public interest in the perpetuation of illegality.”
Mike Seibel, Senior Counsel at Abortion on Trial, reviewed the decision and told Live Action News that what the Appeal’s panel appeared to imply was that if the Comstock Act means what it plainly states, then the shipping of abortion pills anywhere in the United States is already illegal.
“If I were Danco’s Legal Counsel, I would advise them to immediately stop the shipping of all abortion pills,” Seibel explained.
According to NBC News, “The Justice Department can still ask the Supreme Court to intervene in an attempt to completely block Kacsmaryk’s ruling. The administration would need to win the votes of at least five of the nine justices on the court, which has a 6-3 conservative majority.”
“Our decision to grant partial relief does not reflect our view on any merits question….The appeal is EXPEDITED to the next available Oral Argument Calendar,” stated the Fifth Circuit.