The Supreme Court restored access on Thursday to mail-order abortion pills nationwide, lifting an appeals court’s block on a 2023 FDA rule which had removed the in-person requirement for mifepristone.
In an unsigned order, the high court ruled 7-2 in favor of issuing a stay, which indefinitely pauses a May 1 ruling by the U.S. Court of Appeals for the 5th Circuit that had restored an in-person screening requirement for access to the abortion pill. The majority did not elaborate on its ruling. Justices Clarence Thomas and Samuel Alito each wrote their own fiery dissents disagreeing with the high court’s decision to lift the lower court’s block.
“I write separately to note that, as Louisiana argued below, it is a criminal offense to ship mifepristone for use in abortions. The Comstock Act bans using ‘the mails’ to ship any ‘drug . . . for producing abortion,’” Thomas wrote, saying he would deny the emergency petition brought by two abortion pill drugmakers to lift the block on selling the pills online and transporting them to patients via mail.
“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. And, whereas it would ‘serve the public interest’ to ‘reduc[e]’ applicants’ ‘opportunity to commit crimes,’ a stay would have the opposite effect. I respectfully dissent,” Thomas added.
Alito called the decision by his seven colleagues to grant the emergency petition “remarkable,” adding that, “What is at stake is the perpetration of a scheme to undermine our decision in Dobbs v. Jackson Women’s Health Organization, which restored the right of each State to decide how to regulate abortions within its borders.”
“Some States responded to Dobbs by making it even easier to obtain an abortion than it was before, and that is their prerogative. Other States, including Louisiana, made abortion illegal except in narrow circumstances. But Louisiana’s efforts have been thwarted by certain medical providers, private organizations, and States that abhor laws like Louisiana’s and seek to undermine their enforcement,” Alito said in his dissent.
Alito, who handles emergency petitions from the circuit the case originated from, granted an administrative stay last week, extending the deadline of the temporary halt by several days to allow the justices to decide what to do after the 5th Circuit issued a national injunction putting a pause on online abortion pill sales as part of relief in Louisiana’s lawsuit against the FDA.
The uncertainty over access to the abortion pill since the 5th Circuit ruling on May 1 has had the medical community on edge, with some physicians and clinics pausing prescriptions for mifepristone until the legal status is clarified.
Mifepristone, the first drug in a two-part medication abortion protocol, is used in roughly two thirds of the 1.1 million abortions annually in the United States. Louisiana Attorney General General Liz Murrill sued the FDA in October over the agency’s 2023 decision to allow doctors to prescribe mifepristone via telehealth and send abortion pills through the mail without ever evaluating their patients in person.
The 2023 decision from the Biden administration’s FDA removed the in-person screening requirements before and after dispensing the pills, which had been part of the abortion pill protocol since mifepristone was initially approved for use in 2000.
Abortion policy experts estimate that the year-over-year increase in abortions since the overturning of Roe v. Wade in 2022 is due to online abortion pill sales.
Murrill, assisted by the conservative legal advocacy group Alliance Defending Freedom, argues that the FDA’s removal of the in-person requirement harmed Louisiana, along with the 12 other states that have prohibited elective abortions following the overturning of Roe.
The 5th Circuit opinion, authored by Trump-appointed Judge Stuart Kyle Duncan, agreed with Louisiana’s claim that the state is “suffering irreparable harm” because the ability to obtain online abortion pills effectively nullifies state law prohibiting elective abortion.
SUPREME COURT TEMPORARILY PRESERVES ONLINE ABORTION PILL SALES
The appeals court also acknowledged that emergency room visits due to complications from at-home abortions significantly contribute to the state’s Medicaid budget, which covers health expenses for low-income residents. More than 40% of Louisiana residents are covered by Medicaid.
In a 2024 case, the Supreme Court unanimously upheld the FDA’s rule allowing mifepristone to be prescribed online and shipped nationwide, ruling that the group that sued over the rule, the Alliance for Hippocratic Medicine, did not have proper standing to file the legal challenge. The high court could take up the Louisiana case, which it ruled on in an emergency stance Thursday, on the merits in the future.