On Friday evening, the far-right US Court of Appeals for the Fifth Circuit tried to do just that cut access to the abortion drug mifepristone. If you’re experiencing déjà vu, you should be, because in 2023, the right-wing US Court of Appeals for the Fifth Circuit also tried cut access to the abortion drug mifepristone.
Immediately after the Fifth Circuit issued its second ruling, the two drug companies that make the drug asked the Supreme Court to intervene. The two largely identical cases now before the jury are known as Danco Laboratories v. Louisiana and GenBioPro v. Louisiana.
The Fifth Circuit’s argument at first glance was pretty weak The Supreme Court unanimously rejected itmaintaining that the federal courts do not even have jurisdiction to hear the case in the first place. At this time, many of the legal issues are similar to those before the Court FDA v. Alliance for Hippocratic Medicine (2024), the first case of mifepristone. The court should arbitrate Dance in the same way it resolved Union case, in the unanimous opinion that no federal court has jurisdiction to hear this objection.
In particular, Justice Samuel Alito, who usually has first crack at emergency appeals from the Fifth Circuit, issued a temporary injunction. delaying the circuit court’s decision until May 11. That is a very hopeful sign for abortion providers.
That said, abortion providers and their patients have some reason to fear that this Court may not follow through on its decision Union. Although the Court blocked earlier efforts to ban mifepristone, Union it is the only significant victory that abortion rights advocates have won at the Supreme Court since the Republican Party gained a majority on the Court.
The Republican majority on the Court often issues anti-abortion decisions that are inconsistent with their precedents, including recently decided cases. In Medina vs. Planned Parenthood (2025), for example, Republican judges appeared to overturn a two-year decision to cut Medicaid funding for abortion providers.
Similarly, in Women’s Health vs. Jackson (2021), five Republican members of the Judiciary opined that, if taken seriously, allow any country to abrogate any constitutional right by sending bounty hunters after anyone who exercises that right.
So, when drug companies’ move in Dance as strong as the legal argument may be, it remains to be seen whether this Court will follow its example in Union.
The Fifth Circuit’s decision in Dance threatens to remove access to mifepristone
Before we get into the legal details of Dance case, it is important to understand why the Fifth Circuit’s decision in that case is threatening all of them the ability of patients to obtain mifepristone, in every state, although the Fifth Circuit claims that its decision is more moderate.
Before 2021, patients who wanted to abort their pregnancies using medication had to visit their doctor’s office in person and take the medication in person. But in December 2021, the Food and Drug Administration relax those rulesallowing patients to consult a doctor via telemedicine and then receive medication via mail.
Technically, the Fifth Circuit’s decision in Dance only prevents this five-year change to the FDA’s mifepristone protocol. As a practical matter, however, any court-ordered changes to the protocol risk halting patients’ access to mifepristone indefinitely.
The reason is that the FDA only allows mifepristone to be released under a protocol that the FDA itself set, which in this case is known as a “risk evaluation and mitigation strategy” or “REMS.” When the Fifth Circuit struck down the REMS allowing mifepristone to be distributed by mail, on Friday, it did not replace it with anything. So it is far from clear that mifepristone can be prescribed not at all until the FDA replaces the old REMS with the new one.
That process it usually takes months. As Danco Laboratories explained the last time mifepristone was before the Court, it must “modify product labels, packaging and promotional materials; re-certify service providers; and revise its supplier and supplier contracts and policies” to comply with whatever the new REMS requires. And that assumes that the Trump administration, which currently controls the FDA, is willing to issue new REMS.
In fairness, it’s unclear what exactly should happen if the Fifth Circuit’s decision stands. As Danco explains in his recent brief to the judges, “never had a court-ordered REMS,” so pharmaceutical companies and pharmacists are not aware of their legal obligations at this time.” They do not know what actions may result in “civil and criminal penalties,” and thus are likely to proceed with extreme caution, because they cannot know whether distributing mifepristone under any protocol will expose them to “greater liability” or worse.
Unless the Supreme Court overrules the Fifth Circuit, in other words, the lower court’s decision could have the same effect as an outright ban on mifepristone.
The Fifth Circuit’s decision is devastating
There are probably at least half a dozen legal errors in the Fifth Circuit short Dance comments. The most serious errors involve the legal doctrine known as “standing” which was also front and center in Union case.
No plaintiff can bring a federal lawsuit challenging a law or policy unless he has been injured in some way by that law or policy.
In UnionThe plaintiffs were anti-abortion doctors who, as the Court explained, “neither prescribe nor use mifepristone.” However, these doctors claimed that they were injured by the fact that mifepristone is legal because the patient strength taking mifepristone. The patient strength then find complications that require the doctor to complete the patient’s abortion. Then, one of the plaintiff’s doctors strength working in the emergency room when the patient arrives. And that doctor strength forced to abort this pregnancy, perhaps because no other doctor was available to do so.
The Supreme Court rejected this chain of jurisdiction as “too speculative or too limited” to allow the plaintiffs to sue.
Plaintiff in Dance is the state of Louisiana. It claims it has the ability to sue because, if a Medicaid patient takes mifepristone, develops complications, and goes to the emergency room for treatment, then the state may have to pay for that treatment through its Medicaid program. But this claim is even more limited than the plaintiffs’ claims Union. Under the Fifth Circuit’s theory, the patient strength take medicine, strength have problems, strength seek care in a Louisiana emergency room, and strength then the service is paid for by Medicaid. That’s still a lot of power.
(Louisiana claims that it previously paid for two Medicaid patients who sought care after taking mifepristone. But, even if this is true, it doesn’t make sense because, in City of Los Angeles vs. Lyons (1983), the Supreme Court held that anyone seeking an injunction must show a likelihood of injury. in the future for any policy they challenge.)
Alternatively, the Fifth Circuit also held that Louisiana has standing because its law differs from federal law: Louisiana bans mifepristone, while the FDA allows it and even allows the drug to be shipped. But the Supreme Court rejected the argument that a state can sue the federal government because federal law is different from state law in Haaland vs. Bracken (2023), and for good reason. “If it were not so,” the Court explained, “the country would always have a position to bring constitutional challenges.”
There are other possible errors in the Fifth Circuit Dance decision. Among other things, Louisiana may have lost its right to sue because it did not first ask the FDA to change its policy. And the Fifth Circuit blamed the FDA for using the same rules that govern how it regulates drugs to make sure they don’t harm patients as it does for many other drugs. But the Fifth Circuit’s refusal to comply UnionStanding is the most serious error, and the one most likely to trouble the justices, because the Supreme Court usually expects lower courts to follow its recent decisions.
Why hasn’t the Republican Supreme Court sided with banning mifepristone?
One secret that comes to both of them Union and Dance case is why this Court, normally hostile to abortion, has so far rejected the Fifth Circuit’s attempts to ban mifepristone.
One explanation is that Republican judges are simply following their party’s lead. In his second term, President Donald Trump has repeatedly disappointed anti-abortion activists. Anti-abortion groups, for example, lobbied Trump to name Roger Severino, a prominent social conservative who served in Trump’s first administration, as deputy secretary of Health and Human Services. But Trump’s transition team he refused this requestreportedly “over concerns that (Severino’s) strong anti-abortion views would be too controversial.”
Similarly, Trump has not ordered the FDA to ban mifepristone. And his Department of Justice has not brought any charges under Comstock’s Lawthe defunct-but-never-repealed 1873 law that outlaws a surprising array of things related to sex, abortion, or sex.
The Republican Party, in other words, seems worried that moving too aggressively on abortion could backfire — politically or otherwise — and Republican judges may have adjusted their behavior accordingly.
Another possibility is that some Republican justices may have a principled commitment to the views that states should get to determine their abortion policy. In MedinaThe court allowed South Carolina to defund Planned Parenthood, and in Jackson, The court upheld a Texas state law that allowed bounty hunters to collect money from abortion providers. Both cases, in other words, allowed red states to do what they wanted to do.
The mifepristone question, by contrast, affects all states — including blue states that support abortion rights. If the Fifth Circuit’s approach to mifepristone were accepted by the Supreme Court, the drug would be restricted — or even unavailable — in states where abortion is legal. So it’s possible that judges are upholding abortion restrictions imposed by red states, while treading more carefully on decisions that would restrict abortion in states where it is legal.
Whatever the reasons, the Court has so far protected access to mifepristone even as it has repeatedly opposed abortion. But Dance the case is still in the early stages at the Supreme Court, so it remains to be seen whether Alito’s temporary order will turn into something more permanent.
