ARI SHAPIRO, PRESIDENT:

A drug called mifepristone was the subject of a spirited hearing today in the 5th Circuit Court of Appeals in New Orleans. This is a high-risk lawsuit over nationwide access to a widely used drug for abortion and miscarriage treatment. NPR’s Selena Simmons-Duffin heard the hearing and is here to tell us about it. Hi Selena.

SELENA SIMMONS-DUFFIN, STRESSES: Hello, yes.

SHAPIRO: Review what this case was about for us.

SIMMONS-DUFFIN: Then, last November, a group of opponents of abortion rights filed a complaint claiming that the FDA should never have approved this drug more than 20 years ago and also should not have expanded access to the drug in 2016 by changing the rules on who can prescribe it and allow it to be delivered via telemedicine. Defending mifepristone is the Justice Department 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 nominated by Republican presidents, one by President George W. Bush and the others by President Trump. And from the start, it seemed like the Justice Department and Danco, the drugmaker, were going to have tough audiences. The first opening statement was interrupted almost immediately with questions. Here’s a clip to give you a taste. This is Deputy Attorney General Sarah Harrington representing the FDA. And she was answering questions from Judge Cory Wilson. They’re debating whether the FDA changes that made mifepristone more available cause more problems. For example, if someone’s abortion isn’t complete after 14 days.

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

CORY WILSON: Not unless they got it from a doctor. I mean, the FDA relaxed the requirement that the supplier also be a…

HARRINGTON: They will go back to their supplier and argue with their supplier that they don’t…

WILSON: Nurse, midwife?

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

WILSON: Mail order pharmacy?

HARRINGTON: The mail order pharmacy is not the prescriber.

SIMMONS-DUFFIN: I have to say that the judges asked some tough questions of plaintiff’s attorney as well, about whether the emergency room doctors who brought this case and opposed the abortion were harmed by the FDA having approved this drug. And that’s a key question because if they’re not harmed by FDA approval, then they don’t have a position.

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

SIMMONS-DUFFIN: Yes. You know, I was expecting to hear about misoprostol because the drug that is the subject of this hearing, mifepristone, is never or almost never used on its own. It is used as the first drug in a two-drug regimen with misoprostol. And this is a big deal because misoprostol can be used alone for medical abortion. It hasn’t been entirely clear whether the plaintiffs are asking the court to say that medical abortion with any drug should be illegal or whether they are asking the court to rule on mifepristone alone. This barely came up during the hearing, which surprised me. So the other thing was 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 completely blocked FDA approval. 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 backlash as people waited to see if the drugs were going to be pulled off the shelves. Is this likely to happen after the appeals court reaches its ruling? What happens next?

SIMMONS-DUFFIN: Yeah, that’s unlikely to happen again. It is not likely that there will be any changes right away. The Supreme Court has long suspended any changes to access to mifepristone. OBGYNs say patients are really confused about this. So that’s something I want to clarify a lot. Mifepristone is currently legal. It’s still available right now. But most court observers expect a ruling from these judges in the coming weeks or months. An appeal will almost certainly be made to the Supreme Court, which could hear the 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 has been following this case through the courts. A thousand thanks.

SIMMONS-DUFFIN: Thank you.

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