When the US Supreme Court unanimously blocked a lawsuit against the Food and Drug Administration in 2024 over the agency’s regulation of the abortion drug mifepristone, conservatives were disappointed but undeterred. The justices ruled that anti-abortion doctors didn’t have standing to sue. But in a hopeful sign for those opposed to abortion, they left the courthouse doors open to other parties who might be able to make a more convincing case.
Louisiana eagerly took up the challenge. On Tuesday, that lawsuit—another potential blockbuster—has its first major test, when lawyers for the state and a woman who says she was coerced into having an abortion by an ex-boyfriend will try to persuade a federal judge to issue a preliminary injunction against FDA rules that allow abortion pills to be prescribed via telemedicine and sent through the mail.
The case is part of an increasingly urgent—and panicked—anti-abortion campaign to make abortion pills much harder to obtain, not just in Louisiana but nationwide. “Telemedicine has been a game changer for abortion access since Roe v. Wade was overturned, which is exactly why Louisiana wants to eliminate it,” Rachana Desai Martin, chief US program officer at the Center for Reproductive Rights, said in a statement. “They see what a lifeline abortion pills have become—especially for people in states that ban abortion—and they want to squash it.”
The Trump administration, meanwhile, has asked the judge to halt the proceedings until the FDA finishes a review of mifepristone’s safety that it launched last fall. The Louisiana case “threatens to short-circuit” that study, Department of Justice lawyers contend.
Louisiana bans abortions with almost no exceptions, classifies mifepristone and misoprostol as “controlled substances,” and equates abortion providers with “drug dealers.” But nearly four years after Roe was overturned in June 2022, out-of-state abortion providers are mailing hundreds of boxes of abortion pills to Louisiana patients every month. Louisiana Attorney General Liz Murrill blames this state of affairs on a rule change by the Biden administration that permanently ended the FDA’s requirement for in-person dispensing of mifepristone.
“Telemedicine has been a game changer for abortion access since Roe v. Wade was overturned, which is exactly why Louisiana wants to eliminate it.”
The 2023 rule change was “arbitrary,” “capricious,” and “avowedly political,” Murrill claims, pointing to an executive order by President Joe Biden after the Dobbs decision that directed his administration to “identify all ways to ensure that mifepristone is as widely accessible as possible.” She says the rule change exceeded Biden’s authority and violates the Comstock Act, a Victorian-era obscenity law, unenforced for decades, that prohibits the mailing of abortion drugs, supplies, and equipment.
Echoing the claims of abortion opponents going back to the 1980s, Murrill insists abortion pills are too dangerous to be prescribed to women under any circumstances, much less remotely. Fact check: Scores of studies from around the globe have shown that mifepristone is safe and effective.
Murrill also argues that telemedicine makes it too easy for women to be tricked or coerced into having abortions they don’t want. That’s what Murrill’s co-plaintiff in the case, a Louisiana woman named Rosalie Markezich, says happened to her in 2023. Markezich alleges that her boyfriend at the time used her email address to order drugs from a California doctor, then forced her to take the medication against her will. “The trauma of my chemical abortion still haunts me,” she says in court documents. “Had the FDA required an in-person visit with a doctor…my boyfriend would never have been able to obtain the drugs that he made me take.”
Murrill’s efforts to prosecute the California physician, Dr. Rémy Coeytaux, and another abortion doctor, New York–based Dr. Margaret Carpenter, have been thwarted by shield laws in those states that protect telemedicine providers. For all these reasons, Murril argues, the FDA’s 2023 changes “must be held unlawful, stayed, set aside, vacated, and preliminarily and permanently enjoined.”
Louisiana’s suit reflects widespread anger within the anti-abortion movement over the continued availability of abortion pills in the post-Roe era, even in states with near-total bans. According to the most recent data, medication now accounts for almost two-thirds of abortions in the US. More than a quarter of all abortions occur via telemedicine.
Anti-abortion leaders’ frustration with President Donald Trump has also been growing as he has ignored the pleas of his conservative allies to crack down on the pills. The FDA study on mifepristone announced last fall, for example, was widely seen as a delaying tactic to avoid more sweeping action. Last October, Trump’s FDA went so far as to approve a new generic form of mifepristone, potentially making the drug more, not less, available.
Trump’s foot-dragging is thought to be predicated on his concern that federal limits on abortion would further harm Republicans’ rapidly eroding prospects in November’s midterm elections. As abortion historian and law professor Mary Ziegler told me recently, “I think that, left to his own devices, Trump might just run out the clock on abortion stuff for the entirety of his presidency.” But abortion opponents like Murrill aren’t going to sit back and let that happen, Ziegler adds. “He’s not going to be left to his own devices.”
On the contrary, lawmakers across the country are passing increasingly severe laws, like Texas House Bill 7, which gives private citizens broad new powers to sue out-of-state abortion pill providers. Activists have mounted new attacks on the safety of mifepristone, including a campaign pushing false claims that the drug is contaminating drinking water. If Murrill’s lawsuit isn’t successful, several other deep-red states have their own cases advancing through the courts.
Mifepristone, approved by the FDA in 2000, is the first of two drugs that make up the standard medication-abortion protocol. It works by blocking the production of progesterone, the main hormone that supports the developing pregnancy. The second drug, misoprostol, causes the uterus to contract, expelling the pregnancy.
As Smith College professor Carrie N. Baker, author of Abortion Pills: US History and Politics, told me last year, the FDA’s initial approval was under “a very restrictive protocol.” The rules became even more stringent in 2011 when mifepristone was consigned to a program—known as Risk Evaluation and Mitigation Strategy, or REMS—normally reserved for the most dangerous drugs. Only doctors could dispense the pills during in-person visits to clinics or medical offices. Patients were required to have three appointments and could only use the medication through seven weeks of pregnancy. Inclusion in the REMS program “wasn’t because mifepristone was unsafe,” Baker told me, but because it was so controversial:
“There was an enormous amount of research showing that it was safe, including widespread clinical trials. The FDA was worried if something went wrong, the drug would lose approval and go away forever. The restrictions were a way of closely monitoring the abortion pill, not because it was dangerous, but because they wanted to have a good, solid safety record so that they could then justify expanding access. The theory was that they would loosen that protocol after a couple of years of evidence showing how safe it was.”
In 2016, the FDA began relaxing some of those rules, allowing mifepristone to be used up to 10 weeks’ gestation. In 2021, as the pandemic wreaked havoc on medical and reproductive care, Biden’s FDA said it would no longer enforce the in-person office-visit requirement, opening the door to telehealth consultations and mailed pills. After still more study, the Biden administration permanently dropped the in-person requirement in January 2023, six months after Roe was overturned. The new FDA rules also made mifepristone more readily available in pharmacies.
By then, the Alliance for Hippocratic Medicine, a coalition of anti-abortion medical groups and doctors, had already gone to federal court in Texas, seeking to overturn the FDA’s initial approval of mifepristone as well as the more recent rules’ changes. Representing the coalition was the Alliance Defending Freedom, a religious-right legal behemoth that has played a pivotal role in most of the significant anti-abortion and anti-LGBTQ+ policy and court battles of recent years.
The judge in that case, anti-abortion ideologue Matthew J. Kacsmaryk, gave the doctors what they had been hoping for, issuing an unprecedented nationwide order that suspended the FDA’s approval of mifepristone. His decision, subsequently scaled back by the Fifth Circuit Court of Appeals, went to the US Supreme Court, which ruled 9-0 that the doctors lacked standing to bring the lawsuit because they could not show that the FDA regulations caused them any direct harm.
The justices, however, left open the possibility that Missouri, Idaho, and Kansas—which had intervened in the case in 2023—might have standing to sue the FDA on their own. Louisiana and Texas had also sought to intervene, but the two states were too late in joining the suit. Last fall, Louisiana brought its own case in federal court, as did Texas and Florida in a separate lawsuit.
The case being heard on Tuesday has key similarities to the Hippocratic Medicine lawsuit. The Alliance Defending Freedom is representing Rosalie Markezich. As in the doctors’ suit, Louisiana argues that the mailing of abortion pills violates the Comstock Act, which, if enforced, would amount to a national abortion ban.
But the Louisiana case is narrower than the earlier one, focusing on the 2023 Biden rule change and telemedicine. Markezich’s allegations are also a new addition, although her story echoes a growing theme among abortion opponents. Telemedicine, ADF’s senior counsel, Erik Baptist, told States Newsroom, “enables and emboldens people in coercive situations.”
“This goes beyond arguments about safety and efficacy to claims that it’s being widely misused, which there really isn’t evidence of,” says University of Texas law professor Rachel Rebouché. To the contrary, she says, women are more likely to be coerced or tricked into getting pregnant and staying pregnant. “They’re more likely to experience domestic violence and coercion during pregnancy.”
“The FDA is basically saying, you haven’t connected the dots and shown that their lifting of a restriction [in 2023] is what has caused these harms. “
For its part, the Justice Department argues that Murrill doesn’t have any more right to sue the FDA over its regulation of abortion pills than the anti-abortion doctors did. “Louisiana suffers no sovereign injury because it remains free to make and enforce its pro-life policies,” the DOJ says. Regarding Markezich’s claim, it argues, “That past injury (though of course tragic) is not redressable by the prospective relief she seeks.” The idea that Markezich’s injury was caused by the FDA’s rules—rather than, say, by her ex-boyfriend—”is exactly the kind of attenuated theory” rejected by the Supreme Court in 2024, the DOJ contends.
The surprising part of the argument is that Trump’s DOJ is taking the same position that Biden’s DOJ might have taken, Rebouché says. “The FDA is basically saying, you haven’t connected the dots and shown that their lifting of a restriction [in 2023] is what has caused these harms. So what you’re asking the court to do”—issue a preliminary injunction—”is not going to fix the problem.”
In requesting a delay in the legal proceedings until the FDA study is concluded, the Justice Department says the preliminary injunction “may prove as unnecessary as it is disruptive, if FDA ultimately decides that the in-person dispensing requirement must be restored.” The Biden rule has been in effect for three years, the DOJ notes, which undercuts Louisiana’s argument that the need for an injunction is urgent.
“Ordinarily, I’d assume the judge would just grant the request for more time,” says abortion historian Ziegler. “The request is pretty nebulous, though—is it for a year? More? So that makes it more unpredictable.”
As in the Hippocratic Medicine case, the Louisiana lawsuit is being heard by a Trump appointee, US District Judge David Joseph. Last year, Joseph ruled that the EEOC’s inclusion of abortion as a pregnancy-related medical condition under the Pregnant Workers Fairness Act was contrary to the legislative intent of the law. But he has also decided against GOP attorneys general on immigration asylum procedures, and gun rights supporters on gun silencers.
In a sign of the high stakes, numerous groups have filed amicus briefs as if the arguments were taking place before the Supreme Court instead of in the Western District of Louisiana. Lining up for Murrill and Markezich are such anti-abortion stalwarts as Students for Life of America and Heartbeat International. In the FDA’s corner, supporters include former FDA officials, domestic violence organizations, disability rights groups, and Medical Students for Choice.
“The abortion pill is an existential threat to the anti-abortion movement,” Rebouché says. “If you want to end abortion in America, mail-order pills are a huge impediment to doing so.”
This post has been syndicated from Mother Jones, where it was published under this address.