Fifth Circuit Judges Seem Skeptical of Louisiana’s Challenge to Telehealth Abortion

On Wednesday, Sep. 9, a three-judge panel of the 5th Circuit Court of Appeals in New Orleans heard oral arguments in Louisiana v. FDA, a lawsuit filed by the Louisiana attorney general seeking to end telehealth abortion nationwide, even in states that protect abortion access.

Since the fall of Roe and a national snapback of abortion rights in a majority of U.S. states, the antiabortion movement has been laser focused on trying to restrict telehealth abortion because it's increasing in both awareness and popularity, and it allows patients to circumvent state bans.

The 5th Circuit is considered one of the most conservative appeals courts in the country. But the three-judge panel randomly selected to hear Wednesday's case included two judges appointed by Democratic presidents: Judge Stephen Higginson, appointed by former President Barack Obama; and Judge Dana Douglas, by former President Joe Biden. The third judge, Judy Richman, was appointed by George W. Bush.

During oral arguments, all three judges indicated skepticism about Louisiana’s arguments, starting with Louisiana’s right to bring the case.

While the recent 5th Circuit hearing offers hope that efforts to restrict mifepristone through the courts will not succeed anytime soon, two greater threats remain: Trump’s antiabortion nominee to lead the FDA, Heidi Overton, and Attorney General Todd Blanche’s promise to restrict the mailing of mifepristone under the Comstock Act. (This move would spur immediate lawsuits by Democratic states and manufacturers of mifepristone.)

Meanwhile, abortion rights advocates will never give up in finding new ways to put abortion pills in women’s hands.

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