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5th Circuit Further Restricts Access to Abortion Pills

Packet of the abortion pill, mifepristone.
By Eric Harvey, J.D. | Last updated on

Back in March, a Texas man filed a wrongful death lawsuit against three women he alleges assisted his ex-wife in obtaining an abortion. A resident of Galveston County, Marcus Silva claimed that the women could be sued for murder under Texas' wrongful-death law, and he also sought $1 million in damages from each of them. We covered the story at FindLaw's blogs, which you can read about in more detail here.

Since then, an April 12 decision by a federal circuit court and other legislative developments related to abortion rights have unfolded. In addition, a status hearing in Silva's case has been scheduled for June 8. Silva's lawsuit is one of many made possible by the U.S. Supreme Court's decision last year to overturn Roe v. Wade, the landmark 1973 SCOTUS case that provided constitutional protections for a person in obtaining an abortion. Here, we recap the updates on abortion restrictions.

Texas's Increasing Abortion Restrictions

It's no coincidence that Silva's lawsuit was brought in Texas. Not only has this state historically been hostile to abortion, but it has been making headlines in the past couple of years for passing the country's most austere anti-abortion laws. Such laws make it possible for Texas plaintiffs alleging injury because of an abortion to pursue remedial action by a variety of legal mechanisms.

Early in 2021, Texas provided one of these mechanisms in the form of Senate Bill No. 8, or the "Texas Heartbeat Act," which soon passed into a law that is in effect today. This type of law was rare in its extreme enforcement provisions. Colloquially known as a "vigilante law," the act allows Texans to collect "bounties" of $10,000 upon successful identification of any person that aids and abets abortions performed by physicians.

Another of the mechanisms was passed around the same time, House Bill No. 1280. It was passed as the "Human Life Protection Act of 2021." This act allows Texans to pursue civil remedies against individuals they claim have assisted in an abortion. Under this law, Silva is pursuing $1 million in damages from each of the three defendants named in the lawsuit, while alleging that the women's conduct constitutes murder. He claims that, in the wake of the U.S. Supreme Court's decision last year to overturn Roe v. Wade, the Texas law can now be used in this way.

FDA-Approved Abortion Drug Challenged

Early last month came another significant legal development in Texas, in the form of an unprecedented judicial decision at the federal level. U.S. District Judge Matthew Kacsmaryk, of Amarillo, issued a preliminary injunction suspending the use of mifepristone during a legal challenge to the drug. Mifepristone is a progesterone-blocker that has been used for over twenty years now, after the Food and Drug Administration approved its use for abortions in 2000. It is one of the most common drugs used for this purpose. Four anti-abortion groups had sued the FDA last November, claiming that it had not used proper procedure in approving the drug.

Judge Kacsmaryk's ruling would have the effect of suspending the FDA approval of the drug nationwide, banning it across the county, at least temporarily. We note that there is no precedent for a single judge to overturn FDA recommendations. This was a bold move.

On April 12, the 5th Circuit Court of Appeals in New Orleans issued a ruling on the Texas mifepristone case that seemed to be one step forward and two steps back for abortion access.

5th Circuit Further Tweaks Mifepristone Access

On the one hand, the 5th Circuit ruled in a 2-1 vote that the 2000 FDA approval of mifepristone could remain in effect, upending Judge Kacsmaryk's injunction. This alone might bring some relief to those seeking to use the drug for abortions.

But the New Orleans-based appeals court simultaneously reinstated the pre-2016 requirements that greatly restricted the use of mifepristone. In its early days, individuals seeking an abortion had to attend three in-person doctor visits prior to obtaining a prescription for mifepristone. Furthermore, they were only permitted to do so during the first seven weeks of a pregnancy. After 2016, a person seeking a medication abortion could do so during the first 10 weeks of a pregnancy, and could obtain a prescription by mail, without having to visit a doctor's office. Now, the 5th Circuit has brought back these not insignificant requirements for getting the drug.

In the wake of these decisions, U.S. Attorney General Merrick Garland has said that the Department of Justice plans to seek emergency relief from the Supreme Court, and to request that SCOTUS intervene to block restrictions set by the 5th Circuit. In a statement, Garland said that the Biden administration remains committed to defending the FDA's "scientific judgment" and "Americans' access to safe and effective reproductive care."

So where does Silva's case fit in? Decisions like that of the 5th Circuit deeply impact the viability of lawsuits like his. As the June status hearing in Silva's case rapidly approaches, and as other comparable lawsuits commence and proceed, it remains to be seen how decisions and legislative developments at the federal level may affect jurisdiction-specific handlings of abortion issues.

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