A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit on Sept. 9 questioned whether Louisiana has legal standing to force the U.S. Food and Drug Administration (FDA) to reinstate in-person dispensing requirements for the abortion drug mifepristone. The state, which has a near-total ban on abortion, argues the FDA’s 2023 rule allowing telehealth and mail delivery of the drug undermines its enforcement efforts and skipped required safety reviews.
The hearing comes as President Donald Trump’s Justice Department filed a brief opposing Louisiana’s lawsuit while declining to defend the Biden-era policy’s safety analysis. The DOJ’s position left judges seeking clarity on the administration’s stance during oral arguments in New Orleans.
Medication abortion typically involves mifepristone, which blocks progesterone, followed by misoprostol, which induces contractions. The FDA under Trump is currently reviewing safety claims related to mifepristone, though no changes to the 2023 rule have been announced.
Court Questions Louisiana’s Legal Standing
Judges pressed Louisiana’s attorney on whether the state’s abortion ban—rather than direct harm from the FDA’s policy—was the primary motivation for its lawsuit. The panel noted that Louisiana’s near-total ban on abortion already prohibits the procedure, raising questions about whether the state has suffered concrete injury from the mail-order rule.
Louisiana contends that the FDA’s policy, which allows certified prescribers to order mifepristone via telehealth and pharmacies to mail the drug, undermines its enforcement and poses safety risks, including heavy bleeding and rare but life-threatening infections. The state argues the rule change bypassed proper regulatory review and conflicts with its legal restrictions on abortion.
Federal Government’s Shifting Position
The DOJ’s legal filing opposed Louisiana’s request to reinstate in-person dispensing requirements but did not defend the FDA’s 2023 safety analysis. This stance left judges seeking explanations for the administration’s position, with one panel member asking government lawyers to clarify whether they were neither supporting nor opposing the policy.
The Trump administration’s review of mifepristone’s safety profile adds another layer of uncertainty. While the FDA has not indicated plans to reverse the 2023 rule, the ongoing review leaves open the possibility of future changes. The Supreme Court previously lifted a Fifth Circuit temporary block on the mail-order rule in May 2024, allowing mifepristone to remain available by mail pending the appeal.
Impact on Medication Abortion Access
If Louisiana prevails in its lawsuit, demand for medication abortions—now accounting for more than half of all U.S. abortions—could decline. Patients who currently receive mifepristone via mail without visiting a clinic would face additional barriers, including in-person dispensing requirements. The case also intersects with Louisiana’s broader efforts to challenge shield laws in states like California and New York, which protect out-of-state providers from prosecution for prescribing mifepristone to Louisiana residents.
The Fifth Circuit’s decision could set a precedent for other states seeking to restrict mail-order abortion pills, though legal experts note the court’s questions about standing may signal skepticism toward Louisiana’s arguments.