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What to know about the federal appeals court hearing on mifepristone

ARI SHAPIRO, HOST:

A medication called mifepristone was the subject of a lively hearing at the 5th Circuit Court of Appeals in New Orleans today. This is a high-stakes lawsuit about nationwide access to a drug that is used widely for abortion and miscarriage treatment. NPR's Selena Simmons-Duffin listened to the hearing, and she is here to tell us about it. Hi, Selena.

SELENA SIMMONS-DUFFIN, BYLINE: Hi, Ari.

SHAPIRO: Review what this case was all about for us.

SIMMONS-DUFFIN: So last November, a group of abortion rights opponents filed a complaint arguing that FDA should never have approved this medication more than 20 years ago and also shouldn't have expanded access to the drug in 2016 by changing the rules around who can prescribe it and allowing it to be dispensed by telehealth. Defending mifepristone is the Department of Justice representing the FDA and Danco Laboratories, which is the drugmaker behind mifepristone.

SHAPIRO: And how did the hearing go?

SIMMONS-DUFFIN: Well, this was a panel of three conservative judges. All were appointed by Republican presidents - one by President George W. Bush and the others by President Trump. And right off the bat, it seemed like the Department of Justice and Danco, the drugmaker, were going to have a tough audience. The first opening statement was cut off almost immediately with questions. Here's a clip to give you a flavor. This is Deputy Assistant Attorney General Sarah Harrington representing FDA. And she was taking questions from Judge Cory Wilson. They're discussing whether FDA's changes that made mifepristone more available causes more problems. For instance, if someone's abortion is not complete after 14 days.

(SOUDNBITE OF ARCHIVED RECORDING)

SARAH HARRINGTON: Those people will go back to their doctor and discuss with their doctor...

CORY WILSON: Not if they didn't get it from a doctor. I mean, the FDA's relaxed the requirement that the provider even be a...

HARRINGTON: They'll go back to their provider and discuss with their provider who doesn't...

WILSON: Nurse, midwife?

HARRINGTON: Yes. And discuss with their provider the next step. But even in that small population...

WILSON: Mail-order pharmacy?

HARRINGTON: The mail-order pharmacy is not the prescriber.

SIMMONS-DUFFIN: I should say that the judges put some tough questions to the plaintiff's attorney, too, about whether the ER doctors who brought this case and oppose abortion were harmed by the fact that FDA approved this medication. And that's a key question because if they're not harmed by FDA's approval, then they don't have standing.

SHAPIRO: Were there any unexpected moments or surprises in the hearing?

SIMMONS-DUFFIN: Yeah. You know, I was expecting to hear about misoprostol because the medication that was the subject of this hearing, mifepristone, is never or almost never used alone. It's used as the first medication in a two-drug regimen with misoprostol. And this is a big issue because misoprostol can be used alone for medication abortion. It hasn't been totally clear if the plaintiffs are asking the court to say medication abortion using any medication should be illegal or if they're asking the court to weigh in only on mifepristone. That barely came up at all in the hearing, which surprised me. So the other thing was that all the judges really took issue with the defendants calling this case unprecedented and criticizing the Texas judge's decision in April that could have blocked FDA's approval completely. There were a lot of questions about whether the language was accurate or necessary, a lot of back-and-forth about tone.

SHAPIRO: So that decision by the Texas judge in April caused a huge reaction as people waited to see whether medication was about to be pulled off of shelves. Is that likely to happen after the appeals court reaches its ruling? What happens next?

SIMMONS-DUFFIN: Yeah, it's not likely to happen again. There is not likely to be any changes right away. The Supreme Court has put a hold on any changes to access to mifepristone for a good long while. OBGYNs are saying that patients are really confused about this. So it's something that I want to make very clear. Mifepristone is currently legal. It is still available right now. But most court-watchers expect a ruling from these judges in the coming weeks or months. It will almost certainly be appealed to the Supreme Court, which may hear arguments in the fall and issue a decision in the spring. But we're all guessing here. We'll have to see what happens next.

SHAPIRO: NPR's Selena Simmons-Duffin following this case up through the courts. Thank you very much.

SIMMONS-DUFFIN: Thank you. Transcript provided by NPR, Copyright NPR.

Selena Simmons-Duffin reports on health policy for NPR.
Ari Shapiro has been one of the hosts of All Things Considered, NPR's award-winning afternoon newsmagazine, since 2015. During his first two years on the program, listenership to All Things Considered grew at an unprecedented rate, with more people tuning in during a typical quarter-hour than any other program on the radio.