An appeals court is considering a push to restrict most common abortion
method
[September 10, 2026]
By GEOFF MULVIHILL
A panel of federal judges heard arguments Wednesday over whether
prescribing rules should be tightened for a key drug used in the most
common abortion method in the United States, one of several ongoing
efforts to restrict abortion access four years after the U.S. Supreme
Court allowed states to decide the issue.
The case before the New Orleans-based 5th U.S. Circuit Court of Appeals
is one of three making its way through the courts as abortion opponents
try to block providers in states where abortion is legal from sending
drugs for medication abortions into states where it is not.
The U.S. Food and Drug Administration also says it's reviewing the rules
and could call for a change — and that the agency process should take
precedence over court action.
It comes in a midterm election year in which President Donald Trump's
anti-abortion supporters are frustrated that a legal workaround to
abortion bans remains. At the same time, most voters favor legal
abortion access in most cases.
It will be up to the Supreme Court to sort out
At least 3 in 5 U.S. abortions are now obtained using a two-drug
combination. At issue before the appeals court is just one: mifepristone.
Wednesday’s arguments were part of a case brought by Louisiana Attorney
General Liz Murrill and Rosalie Markezich, who says she was coerced into
taking abortion pills. A survey conducted for the Society of Family
Planning, which supports legal abortion access, estimates that between
770 and 900 women in Louisiana obtained abortions each month in 2025 by
using pills prescribed online or by doctors or nurse practitioners in
other states that have “shield laws” intended to protect those
prescribers.
The three judges hearing the case are two nominated by Democratic
presidents Barack Obama and Joe Biden and one nominated by Republican
George W. Bush.
Three other three-judge panels on the 5th Circuit — one in this case and
two in an earlier one — and two district courts have already agreed that
rules for prescribing mifepristone are too loose.
But the Supreme Court unanimously rejected an effort to roll back
availability in 2024 — not because of the core legal argument, but
because the court found the anti-abortion groups who brought the
challenge didn’t have legal standing to make it.
On Wednesday, lawyers for the FDA and mifepristone manufacturers argued
that Louisiana also lacks legal standing. One of the judges, Stephen
Higginson, questioned whether the FDA's role is a reason pills are
flowing into Louisiana. “Those are state shield laws,” he said. “The
government has nothing to do with the shield laws.”
Benjamin Aguinaga, Louisiana's solicitor general, said the state is
impacted, though, because some women who use the pills seek treatment
for complications and, he said, perhaps half also have state-funded
Medicaid health coverage.
Another ruling from the 5th Circuit would not immediately change the
landscape because the Supreme Court has also blocked changes to the
prescribing rules until it sees the case again. Even if the FDA makes
changes without court approval, such an action would surely be
challenged.
Other GOP state officials are also challenging the FDA’s rules. The
attorneys general of Florida and Texas have filed one lawsuit and the
top government lawyers of Idaho, Kansas and Missouri have another.
Separately, Louisiana and Texas have attacked shield laws by bringing
criminal and civil cases against some out-of-state providers.
Meanwhile, over the past year, federal judges in Hawaii and Virginia
found that current FDA rules for mifepristone prescribing are too
restrictive.
Abortion methods have changed since Roe was overturned
Abortion pills were already widely used before the Supreme Court
overturned Roe v. Wade in the 2022 Dobbs v. Jackson Women's Health
Organization case that allowed states to enforce abortion bans.
Currently, 13 states ban abortion at all stages of pregnancy. Another
four do so after about the first six weeks, before many women realize
they're pregnant.
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Bottles of abortion pills mifepristone, left, and misoprostol,
right, are displayed at a clinic in Des Moines, Iowa, Sept. 22,
2010. (AP Photo/Charlie Neibergall, File)
 Opponents say the shield laws in
some Democratic-controlled states, along with the rules allowing
mifepristone to be mailed to patients, have undermined the bans.
“This case is going to have a huge impact,” said
Gabriella McIntyre, legal counsel at Alliance Defending Freedom,
which is representing Murrill and the other plaintiff in the case.
“The promise of the Dobbs decision was that states would be able to
decide on their own how to regulate abortion.”
A lawyer for mifepristone maker Danco Laboratories, though, told
judges Wednesday that the 2023 rules were not intended to do so.
Abortion rights advocates also believe major consequences would
arise if Louisiana eventually prevails. “They're asking to restore
an in-person requirement for every person across the country to
access this medication regardless of whether they live in a state
with strong legal protection for abortion access,” said Amanda
Allen, executive director of the Abortion Coalition for
Telemedicine.
The political situation is tricky for Trump
Anti-abortion groups who want to rein in pill access have been
Trump's key supporters.
Abortion opponents have called on the FDA to settle the lawsuit with
Louisiana and roll back prescribing rules to how they were before
telehealth prescriptions were allowed. They also want the
administration to enforce an 1873 “anti-vice” law to bar mailing the
pills.
Some states, including Mississippi and Texas, have adopted laws with
civil or criminal penalties for those who prescribe abortion pills.
But on state ballot questions and in public opinion polls, voters
have generally supported legal abortion access in most cases.
The administration has been mostly quiet through the legal battles,
even though the FDA, whose scientists have repeatedly found
mifepristone to be safe and effective, is the defendant in the
cases.
The FDA says it’s studying mifepristone’s safety and reviewing
prescribing rules around the drug. But Trump’s latest nominee to
head the agency, Dr. Heidi Overton, the deputy director of the White
House Domestic Policy Council, has publicly criticized the agency
for relaxing its prescribing rules for the drug — the most recent
change coming in 2023.
One judge ordered the agency to provide a status update by Oct. 7,
less than a month before the midterm elections in which control of
Congress is in play. It's not clear how detailed an update might be
— or when the full study could be completed.
Prescribers are preparing to shift which drug they ship
Even if mifepristone access is curtailed, advocates say it won't end
access to abortion pills.
The most common regimen for pills in the U.S. is a combination of
mifepristone and misoprostol. Misoprostol, which is commonly used to
treat stomach ulcers and has never been formally approved for
abortion, can cause abortions on its own. According to the FDA label
on mifepristone, the combination completes medical abortion 97.4% of
the time. Some studies have found misoprostol’s individual
effectiveness at around 80% or higher.
Organizations that prescribe abortion pills by telehealth for women
who are in states with bans say they would shift to sending
misoprostol alone if mifepristone could be dispensed only at medical
clinics rather than at pharmacies and through the mail.
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