5th Circuit Panel Blocks 2023 Mifepristone Telemedicine Approval

It has been a very busy 48 hours for Louisiana. On Wednesday, the Supreme Court decided Callais. The following day, the Governor announced he would suspend the upcoming primary elections to allow the legislature to redistrict. There is also litigation before the Supreme Court about the issuance of the judgment in Callais. Earlier today, the Governor was sued to enjoin the cancellation of the election.

And just a few moments ago, the Fifth Circuit panel granted a stay in Louisiana’s challenge to the mifepristone telemedicine approval from 2023. What, you thought the case was over after Alliance for Hippocratic Medicine? You have not been following the Fifth Circuit closely enough.

For now, I will just paste the introduction of Judge Kyle Duncan’s panel opinion.

In Dobbs v. Jackson Women’s Health Organization, 597 U.S. 215 (2022), the Supreme Court returned the regulation of abortion to the states. In response, the Biden Administration directed federal agencies to “expand access to . . . medication abortion.” Exec. Order No. 14076, 87 Fed. Reg. 42053 (July 8, 2022). The next year, the Food and Drug Administration (FDA) formally altered its safety guidelines for the abortion drug mifepristone. Under the new regulation, the drug could now be prescribed online and dispensed through the mail, without any need for an in-person visit to a doctor. In 2025, Louisiana challenged the new regulation in federal court under the Administrative Procedure Act (APA). It argued that FDA’s justifications for remotely dispensing mifepristone were based on flawed or nonexistent data. It also documented how the new regulation had resulted in numerous illegal abortions in Louisiana and in Louisiana paying thousands in Medicaid bills for women harmed by mifepristone. Louisiana sought a stay of the regulation while the litigation proceeded. In response, FDA conceded it had failed to adequately study whether remotely prescribing mifepristone is safe. But the agency resisted staying the regulation, arguing it was in the midst of a comprehensive review of mifepristone protocols. The agency, however, could not say when that review might be complete and admitted it was still collecting data. The district court agreed that Louisiana was likely to win its challenge to the mifepristone regulation and was suffering irreparable harm from it. Nonetheless, the court declined to stay the regulation based on its balancing of the equities and the public interest. Louisiana appealed to our court and sought a stay pending appeal under 5 U.S.C. § 705.

We grant the stay.

This case should get to the Supreme Court ver soon.

To be clear, this ruling would not take mifepristone off the market. But it would require people to have an in person evaluation before receiving a prescription for the abortion drug. Post-Dobbs, the number of abortions nationwide has likely increased, in large part, because of the telemedicine requirement. Doctors in blue states send these pills to Louisiana, Texas, and other red states, and are protected by state shield laws. But if there is an in-person requirement to prescribe the drug, those doctors would not be able to dispense across state lines.

The Trump Administration likely does not want this headache. The government has raised a host of standing and other procedural defenses, but has not defended the Biden decision on the merits. Let’s see what SG Sauer does before the Supreme Court everyone.