Supreme court allows abortion pill mifepristone to continue to be available by mail

The US supreme courtupheld nationwide access to mail-order mifepristone, an abortion medication, in a shadow-docket decision on Thursday.

Louisiana sued the US Food and Drug Administration (FDA) in October in a bid to curtail the regulatory agency’s rules on prescribing mifepristone remotely, arguing that it interfered with the state’s ban on abortion.

The fifth circuit ruled in Louisiana’s favor on 1 May, effectively banning mail-order mifepristone for the entire country. Two mifepristone manufacturers, Danco Laboratories and GenBioPro, filed an emergency request with the supreme court, which granted a temporary stay until at least Thursday.

In a 7-2 decision with dissents from justices Clarence Thomas and Samuel Alito, the court sided against the fifth circuit, ending the ban – for now.

The decision came nearly a half hour after the court missed its own 5pm EST deadline.

Louisiana has no standing to challenge mail-order abortion, the court found, sending the case back to the fifth circuit. The suit is expected to return to the court on an official appeal, instead of emergency requests from drug manufacturers, in another term.

In his dissent, Thomas called the mailing of mifepristone to patients “criminal enterprise”. He also noted that the 1873 Comstock Act, which broadly banned people from using the mail to send anything “obscene, lewd or lascivious”, including “any article or thing designed or intended for the prevention of conception or procuring an abortion”, should apply to mifepristone.

Medication accounts for approximately two-thirds of abortions in the US. In large part because of mailed medication, abortion rates have stayed steady in the US despite bans in several states.

Years of research have shown that abortion medications are safe and effective. The recent legal challenges, following the Dobbs decision that upended nationwide access to abortion, have been based on politics rather than evidence, experts say.

In 2023, the FDA ended a requirement to prescribe mifepristone in person, opening up remote dispensation via telehealth.

The supreme court ruled on a similar case in 2024, FDA v the Alliance for Hippocratic Medicine, that challenged the FDA’s rules on how the drug is dispensed. The court found the coalition of anti-abortion groups did not have standing because they were unable to demonstrate how they were harmed.

The same law firm that represented the 2024 case, Alliance Defending Freedom, is now representing Louisiana in their suit.

This case, Louisiana v FDA, argues that because mifepristone may be mailed to anyone in the state, the practice circumvents its abortion ban. The state claimed the 2023 decision by FDA was not based on science, which would violate the Administrative Procedure Act. Louisiana also argues that the FDA rules violate the Comstock Act, an obscure anti-obscenity law from 1873.

The FDA asked for more time to conduct a safety review of the medication; a judge ruled in April that the case would be on hold until that review is complete, but Louisiana appealed against the decision. Conservative lawmakers expressed frustration with Marty Makary, the FDA commissioner who was pushed out of the agency earlier this week.

Former FDA leaders, researchers and lobbyists submitted amicus briefs in the case, but the US government did not respond to the lawsuit against its own agency – an unusual move.

The case has potential repercussions for the entire drug industry by allowing a single state to surpass the FDA to regulate medications for the rest of the country. Each state may regulate access to abortion, but the FDA has the power to regulate medications nationwide.

With other legal challenges on the horizon, abortion providers have plans in place to offer an alternative medication regimen to patients. Misoprostol alone can end pregnancies, though it takes longer and thus some patients experience more discomfort.

Earlier on Thursday, the entire Senate Democratic caucus reintroduced a resolution “affirming that the abortion medication mifepristone is safe and effective”, and underscoring that law and policy related to the medication must be equitable, transparent, and based on the best available peer-reviewed evidence-based science. While not binding, the formal expression of all 45 Democratic senators’ opinion is notable".

“Healthcare providers have safely prescribed mifepristone for decades – limiting access to this medication would be another blow to our hard-earned reproductive freedoms. Extremists should never dictate a woman’s right to reproductive care,” wrote Jeanne Shaheen, a New Hampshire senator, on X about the resolution.