Last Wednesday, a randomly selected Fifth Circuit panel listened to oral arguments for Louisiana’s ongoing FDA lawsuit to attack (ahem, eliminate) telehealth abortions—and struggled to get behind the hare-brained arguments of either side. Maybe—just maybe!—that’s what happens when you get two parties on either side of the same anti-abortion coin.
“Normally the Fifth Circuit is very unfriendly to a lot of fundamental rights issues, particularly reproductive freedom,” Emily Steinert McDowell, associate director of federal policy at Reproductive Freedom for All, explained to Jezebel. The panel had fewer “stalwart anti-abortion extremists,” and “instead the pretty rare minority of democratically appointed [judges.] Two out of the three were appointed by Democratic presidents,” she said.
Let’s begin with the Louisiana side of things, where anti-abortion Attorney General Liz Murrill’s (R-La.) has been making her perennial and tired point of misinterpreting shield laws—and was thus reminded last week that, yes, states’ rights concepts exist.
Louisiana v. FDA originally started with Murrill demanding the FDA rescind its 2023 decision removing the in-person requirement for mifepristone, claiming that it was letting people poison women and thus forcing them to have abortions. (Louisiana has one of the strictest abortion bans in the country—making shield laws a lifeline, wherein doctors and providers who are from states where abortion isn’t banned can treat Louisianans.) Speaking to reporters afterward, she said, “We continue to think that the FDA should reinstate the pre-Biden era rules, which were good, common sense rules, and that the evidence continues to show that this is dangerous medication for women.” Evidence that, of course, doesn’t exist outside a bogus “study” that was authored by a Project 2025 co-sponsor, and which was the sole target of an amicus brief filed early this month by hundreds of reproductive rights researchers.
While Murrill wasn’t present at the argument, representing her office was Attorney Solicitor General Ben Aguiñaga, who claimed at one point that “Louisiana’s experiencing 1,000 abortions a month due to mifepristone being mailed into the state.” (Lips, meet God’s ears) This inflated figure (the Society of Family Planning estimates the state figure is closer to 770 and 900) is no match, however, for the comparisons between abortion, fentanyl, and guns Murrill made during the case’s early days. So maybe it should have come as no surprise when they were hit with judicial head cocks over the case’s standing—or lack thereof.
“Those are state shield laws,” U.S. Circuit Judge Stephen Higginson said, referring to telehealth abortion in Louisiana. “The government has nothing to do with the shield laws.” (Again—a concept Murrill seems to have difficulty understanding.) Judge Priscilla Richman added she was “having trouble finding anywhere in the record that the FDA has approved the mailing of [mifepristone] into states where it’s unlawful to do that.”
The panel also questioned its own authority to grant Murrill’s wishes for a block on the FDA’s decision while the Supreme Court reviews the issue—her second attempt at doing so. Higginson added that the state’s request to “stay the stay” on telehealth abortion seemed paradoxical, what with Louisiana asking for a decision and a pause on the decision in the same breath of air. “Seems a little self-defeating,” he said.
The FDA also had a rough time during Wednesday’s hearing, with the agency’s lawyer, Daniel Winik, repeatedly skirting the 2023 decision that was made in the first place. Moreover, he punted questions about the FDA’s needless investigation of mifepristone, saying he had “no idea” what the FDA would do with regard to access, but adding that “the whole position of our position in this case is that it’s the FDA’s job in the ongoing consideration of mifepristone to address all of these issues.” Convenient!
“I think that shows the state of this current FDA, and that it is not vigorously defending mifepristone on the merits, not defending the fact that mifepristone is safe and effective, and it has hundreds of studies to prove its safety and efficacy, but instead was relying on mundane procedural arguments to try to defer to the FDA’s authority in this case,” McDowell further explained. She added that depending on the outcome of the case, the other party will likely “undoubtedly appeal” and it could become “ripe for a Supreme Court challenge.”
Still, none of this is particularly reassuring, given both the administration and state have the same anti-abortion goals. Their sense of timing, however, differs slightly. Earlier this year, Louisiana’s lawsuit pushed forward despite the administration’s clear wishes to keep things quiet until a perilous midterms season had passed.
Nevertheless, it seems that the FDA is still nervous to implement any drastic rollbacks ahead of some crucial elections, as made clear in Winik’s finickiness. “I would suspect the timing absolutely has to do with the upcoming midterms,” continued McDowell, “But that being said, I think they’re trying to walk this tight line of defending a regulations decision—a regulatory action by an agency—without also upsetting the anti-abortion extremists by defending mifepristone on the merits.”
