Anti-abortion groups urged the Supreme Court this week to uphold an appeals court ruling barring abortion pills from being sold online and transported to patients via mail, as the justices weigh whether to pause the ruling on their emergency docket.
The Supreme Court is currently examining an emergency petition by a pair of drugmakers that offer mifepristone, the abortion pill at the center of the litigation, to lift a ruling from 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 drugmakers claimed the ruling by a lower court blocking online access to the pill created “nationwide chaos.” Justice Samuel Alito issued an administrative stay on Monday to allow both sides to brief the high court on the emergency petition, with that emergency halt slated to expire at 5 p.m. on Monday.
The FDA lifted the in-person screening requirement under the Biden administration in 2023, in the aftermath of the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which returned abortion lawmaking to the states. Louisiana officials, who brought the initial lawsuit, and anti-abortion groups filed briefs to the Supreme Court calling on the justices to allow the ruling to remain in effect, arguing the FDA rule undermines the state’s law restricting abortion.
“While this Court was preparing to ‘return the issue of abortion to the people’s elected representatives,’ the Biden administration was preparing a plan that predictably would undermine that decision. That plan turned on the abortion drug mifepristone,” Louisiana’s brief to the Supreme Court said, noting the FDA had long included an “in-person dispensing requirement” to ensure the abortion drug would not pose unique health dangers to a woman and to ensure she was not being forced into taking the drug.
The Louisiana brief, brought by officials from the Pelican State and the conservative law firm Alliance Defending Freedom, also discussed the harm the FDA’s 2023 rule caused the state through the healthcare costs needed for women who faced complications after taking the abortion pill.
“Although Louisiana law generally prohibits abortion and the dispensing of mifepristone to pregnant women, out-of-state prescribers—freed from the in-person dispensing requirement—are causing approximately 1,000 illegal abortions in Louisiana each month by mailing FDA-approved mifepristone into the State,” Louisiana’s brief said.
“Those violations of Louisiana law, in turn, are directly causing tens of thousands of dollars of harm to Louisiana in the form of investigatory costs and Medicaid costs from statistically certain emergency room visits,” the brief reads.
Louisiana officials argued the drugmakers brought the emergency petition “because they wish to increase their profits by selling more abortion drugs and otherwise avoid compliance costs.”
Republican lawmakers and states also supported Louisiana’s position, urging the Supreme Court to keep the 5th Circuit’s ruling in effect for now. The brief from the GOP-led states, led by Nebraska, stated that allowing the ruling to remain in effect would preserve the states’ “sovereign prerogative to regulate abortion as their citizens see fit.
“To be sure, the stay will undermine efforts, emanating from pro-abortion jurisdictions, to flout the Amici States’ duly enacted abortion regulations and restrictions. That is a feature, not a bug,” the brief of 23 states Republican-led states said.
Susan B. Anthony Pro-Life America, a prominent anti-abortion group, also filed a brief supporting Louisiana, arguing that the in-person screening requirement for mifepristone is essential to protecting the health and safety of pregnant women considering the drug.
“Physicians cannot adequately inform a woman of her particular risks related to mifepristone without treating her in person,” the brief said. “And without in-person care, prescribing healthcare providers also cannot adequately determine whether patients are giving voluntary consent without coercion. Thus, granting the requested stay will not only ‘substantially injure the other parties interested in the proceeding,’ it is also contrary to the public’s interest, another factor the Court must consider.”
Notably, the Trump administration did not file any brief to the Supreme Court either supporting or opposing the bid by the abortion pill drugmakers to restore the FDA rule instituted by the Biden administration. In other court cases brought by Florida and Texas officials challenging the FDA rule, the Trump administration has attempted to dismiss lawsuits, claiming it is conducting a comprehensive review of the Biden-era rule easing restrictions on the abortion drug.
The second Trump administration has frustrated anti-abortion advocates, who argue officials within the administration are not doing enough to combat efforts by abortion-rights activists to ease restrictions on the procedure and abortion pills, such as mifepristone. SBA Pro-Life America President Marjorie Dannenfelser took aim at the administration last week after the 5th Circuit restored the in-person screening requirement for mifepristone, accusing them of slow-walking the drug’s review.
“It’s shameful that the Trump administration’s inaction has forced pro-life states to take their battle to the federal courts,” Dannenfelser said. “The FDA does not need a year or more to complete a comprehensive study before it can take dangerous abortion drugs out of the mail — that’s just common sense.”
SAMUEL ALITO HALTS APPEALS COURT RULING BLOCKING MAIL-ORDER ABORTION PILLS
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 Supreme Court is expected to issue a ruling on the emergency petition by 5 p.m. Monday, when the current administrative stay expires.