ADF Urges Court to Speed Up Ruling on Mail-Order Abortion

FIRST ON THE DAILY SIGNAL—The legal group Alliance Defending Freedom is urging the U.S. 5th Circuit Court of Appeals to expedite its case against mail-order abortion.

ADF is suing the Food and Drug Administration for removing the in-person dispensing requirement for the abortion drug mifepristone, as part of the agency’s Risk Evaluation and Mitigation Strategy (REMS). The group claims that one of the plaintiffs in the case, Rosalie Markezich of Louisiana, was coerced by her boyfriend into taking abortion drugs that he ordered by mail from California. Abortion is prohibited by Louisiana’s law, with few exceptions.

The religious liberty law firm filed its first brief with the appeals court arguing why it deserves relief, and it also filed a motion to expedite the case given the urgency of the matter.

“Every single month, 1,000 lives being taken from this unlawful scheme,” ADF legal counsel Gabriella McIntyre told the Daily Signal. “That’s why we’re asking for a hearing to be expedited, to be moved up, so that we could get relief quicker because of that irreparable harm.”

Abortion by mail undermines the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization that states can regulate and even ban abortion, McIntyre said, because abortion pills are being mailed into states with pro-life laws. In Dobbs, the Supreme Court ruled there is no national right to abortion, meaning states can pass their own abortion laws including a ban at any stage of pregnancy.

A federal district court already upheld Louisiana’s ability to challenge the administration and said the state is likely to succeed on the merits of the case. The court put the case on hold while the FDA conducts a safety study on mifepristone.

The FDA launched its review on the safety of the abortion pill, the Wall Street Journal first reported on June 4, to determine if the Biden-era decision to remove the in-person dispensing requirement on the abortion pill is safe. Pro-life advocates have demanded a completed study for a year-and-a-half.

After Louisiana appealed to the 5th Circuit, the court ruled in the state’s favor, putting a hold on the FDA’s regulation allowing mail-order abortion. However, drug manufacturers sought emergency relief, and the Supreme Court issued an order allowing abortion pills to continue being mailed into pro-life states.

ADF now needs to go through the 5th Circuit hearing on the merits of its appeal.

Since a court has said Louisiana and ADF are likely to win on the merits, the question that remains is whether the plaintiffs have the standing to sue.

“We really want to continue to press that the courts below have already held that Louisiana not only has standing but it’s also suffering irreparable harm,” McIntyre said, “and we’re likely to succeed on the merits because this entire litigation, the FDA has refused or has at least declined to justify the 2023 REMS decision.”