Abortion pills will remain available by mail in U.S for now

Abu Sabet: Abortion pills can remain available through the mail for the immediate future after the Supreme Court on Thursday paused a lower court ruling that would have blocked access while a lawsuit proceeds.

The justices halted a May 1 order from the conservative U.S. Court of Appeals for the 5th Circuit that reinstated a requirement that women must visit a healthcare provider in-person to obtain mifepristone. If it had taken effect, the order would have severely curtailed abortion access across the country.

Conservative Justices Clarence Thomas and Samuel Alito dissented separately.

“The Court’s unreasoned order granting stays in this case is remarkable. What is at stake is the perpetration of a scheme to undermine our decision” overturning constitutional abortion rights, Alito wrote.

Thomas referenced the Comstock Act, an 1873 anti-obscenity law, to argue that federal law already makes mailing mifepristone a criminal offense.

“Applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise. They cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes,” Thomas wrote.

Thomas and Alito repeatedly referenced Comstock during oral arguments in a 2024 case about mifepristone.

It is not a final decision in the high-stakes dispute. The case now heads back to the New Orleans-based 5th Circuit, and it could ultimately return to the justices on their normal docket.

The Supreme Court was asked to weigh in by Danco and GenBioPro, two drugmakers that manufacture mifepristone and a generic version of the drug. The companies argued the 5th Circuit’s decision was unprecedented and would cause confusion.

“With today’s Supreme Court decision, Americans’ access to mifepristone remains unchanged for now. GenBioPro is continuing to serve its customers and is committed to providing our evidence-based, essential medication to all who need it,” GenBioPro CEO Evan Masingill said in a statement.

The 5th Circuit’s ruling came after Louisiana sued the Food and Drug Administration (FDA) to restrict access to mifepristone. The state objected to a 2023 FDA regulation that allowed mifepristone to be prescribed through telehealth, in pharmacies and through the mail.

The state argued that the FDA’s permissive rules undercut its near-total abortion ban and were a violation of the state’s sovereignty. Louisiana also asserted the FDA didn’t have enough safety data to roll back the in-person dispensing requirement, a claim the manufacturers reject.

Alito, who by default handles emergency matters arising from the 5th Circuit, had briefly put the ruling on hold until the Supreme Court decided what to do.

“It’s shocking that the Supreme Court would block this common-sense return to medically ethical practices and oversight,” Louisiana Attorney General Liz Murrill (R) said in a statement. “DOJ did not defend Big Pharma, which is profiting from the illegal and unethical distribution of abortion pills. We will keep fighting.”

The emergency case marked one of the biggest disputes over abortion in years at the Supreme Court, which nearly four years ago overturned the constitutional right established in Roe v. Wade.

The court in 2024 unanimously upheld access to mifepristone on a technicality, ruling that doctors and medical groups opposed to abortion did not have a legal right to sue.

Medication abortion is the most common pregnancy termination method, and abortion opponents have grown frustrated with the wide availability of mifepristone, which is typically used as part of a two-drug combination for medication abortion.

Mail-order pharmacies, combined with blue state “shield laws” protecting clinicians from prosecution, have helped women maintain access even as conservative states ban or severely limit access to abortion clinics.

As a result, abortions have increased despite the end of Roe.

Notably, the Trump administration did not take a position when the battle landed at the Supreme Court, though other GOP states and members of Congress did.

The FDA is reviewing the safety protocols for mifepristone, but it’s unclear when that review will be complete. The Justice Department told the appeals court that Louisiana’s lawsuit “would disrupt FDA’s ongoing review, and usurp FDA’s scientific role, but would also threaten chaos.”

“Over the years, FDA has reviewed extensive safety and effectiveness data from dozens of clinical trials and decades’ worth of real-world experience in millions of patients,” Danco said in a statement. “Danco also is confident that a review of all recent, reliable data by FDA will continue to show that Mifeprex is very safe and effective.”

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