Louisiana presses abortion-pill challenge before Fifth Circuit

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(The Center Square) — A federal appeals court on Wednesday pressed Louisiana on whether it can legally blame the Food and Drug Administration for abortion pills being mailed into the state, as Louisiana sought to restore an in-person dispensing requirement for mifepristone nationwide.

During oral arguments before the U.S. Fifth Circuit Court of Appeals in New Orleans, much of the questioning focused on whether Louisiana has standing to challenge the FDA’s 2023 decision allowing mifepristone to be dispensed without an in-person visit.

Judge Stephen Higginson questioned whether Louisiana’s alleged injuries could be traced directly to the FDA, noting that laws in other states protect doctors who prescribe abortion pills to patients in states where abortion is banned.

“Those are state shield laws,” Higginson said. “The government has nothing to do with the shield laws.”

Louisiana Solicitor General Benjamin Aguinaga argued that the state is nevertheless being harmed because the FDA policy allows mifepristone to be prescribed remotely and mailed into Louisiana, where abortion is prohibited in most cases. He also argued Louisiana incurs Medicaid costs when some women who take the drugs later seek medical treatment.

Attorney General Liz Murrill, speaking after the hearing, said Louisiana believes restoring the requirement that mifepristone be dispensed in person would make it more difficult for out-of-state providers to send abortion pills into Louisiana.

“We think the in-person dispensing requirement would help curb some of that and would protect women,” Murrill said.

Murrill cited estimates that more than 1,000 abortions are occurring in Louisiana each month through pills obtained from outside the state. A Society of Family Planning survey estimated between 770 and 900 abortions per month in Louisiana during 2025 involved pills prescribed online or by providers in states with shield laws.

In a sworn declaration filed in the case, Indiana OB/GYN Christina Francis, CEO of the American Association of Pro-Life Obstetricians and Gynecologists,  described two patients who required hospital treatment following medication abortions. One suffered heavy bleeding and unstable vital signs and required an emergency D&C, while another was treated for retained tissue and later hospitalized with an infection.

Francis argued that remote dispensing makes it harder for doctors to determine whether a patient is being coerced because a prescriber may never see the person ordering the medication. 

"The FDA abandoned women and girls when it removed longstanding safeguards for mifepristone and paved the way for mail-order abortions, leaving patients vulnerable to serious health risks and abuse," Francis said in a statement. "

Murrill also said her office has investigated six cases involving women she says were harmed by abortion medications, including cases in which women allegedly were given the drugs without their knowledge.

In one case, Murrill said, a woman went into premature labor after allegedly being given the medication and the baby remained in neonatal intensive care.

“It’s dangerous for women,” Murrill said. “It’s certainly dangerous for the baby.”

The FDA and manufacturers Danco Laboratories and GenBioPro dispute Louisiana’s standing, arguing the state’s alleged injuries depend on independent actions by patients, prescribers and states with shield laws.

The Trump administration has largely avoided defending the 2023 policy on its merits because the FDA is conducting its own review of mifepristone. That position also drew criticism Wednesday.

“I find that very unsatisfactory, that the agency won’t give an opinion as to its own regulations,” Higginson told an FDA attorney.

U.S. District Judge David Joseph stayed the underlying case April 7 to allow the FDA review to proceed. A Fifth Circuit panel then sided with Louisiana on May 1, finding the state had standing and was likely to succeed in challenging the 2023 rules.

The U.S. Supreme Court blocked that order May 14 while the appeal continues, meaning mifepristone can still be prescribed remotely and sent through the mail. The Supreme Court did not decide the merits of Louisiana’s case.

The Fifth Circuit did not rule Wednesday. If Louisiana prevails, the appeals court could again suspend the FDA’s 2023 mifepristone rules, effectively restoring the previous requirement that the drug be dispensed in person.

The Fifth Circuit has previously said such a stay under the Administrative Procedure Act would have a nationwide effect because it temporarily suspends the challenged federal rule, rather than applying only within Louisiana.