Supreme Court asked to keep abortion drug mifepristone available by mail
The Supreme Court was asked to intervene after a lower court blocked a popular abortion drug from being dispensed through the mail.
Maureen GroppeWASHINGTON – Two years after the Supreme Court tossed out a challenge to the widely used abortion drug mifepristone, the justices must again decide whether access should be restricted.
In emergency appeals filed May 2, drug makers Danco Laboratories and GenBioPro asked the court to immediately pause a lower court ruling limiting access.
“The Supreme Court must reject this unfounded and baseless attack on an essential medication," GenBioPro CEO Evan Masingill said in a statement.
The conservative 5th U.S. Circuit Court of Appeals on May 1 temporarily reinstated a Food and Drug Administration requirement that doctors prescribe the drug only after an in-person exam. The three-judge panel did so in response to a challenge from Louisiana to the elimination of that requirement by the Biden administration.
'Nearly 1,000 illegal abortions' per month
Louisiana argues that allowing the drug to be dispensed through the mail ignores the threat of complications from mifepristone, such as sepsis and hemorrhaging. The state also says mailed delivery of the drug allows women to get around abortion bans.
The appeals court agreed that the looser rule “facilitates nearly 1,000 illegal abortions in Louisiana per month.”
Multiple Republican-led states are trying to make it harder for women to access mifepristone, a pill used in nearly two-thirds of abortions across the United States – including in states that have largely banned abortion.
The Trump administration's FDA is now reviewing the safety of the drug. Advocates for legal abortion have called the review a sham, saying the science behind the agency’s previous decision is solid.
“This isn't about science,” Nancy Northup, head of the Center for Reproductive Rights, said in a statement. “It’s about making abortion as difficult, expensive, and unreachable as possible.”
In January, the administration asked a judge to pause Louisiana’s challenge until the FDA’s review is done.
A federal judge agreed. But the appeals court blocked that ruling and said the in-person dispensing requirement should return while Louisiana appeals the judge’s decision.
In 2023, the Supreme Court paused a ruling from the same appeals court that likewise would have reimposed the in-person requirement while a lawsuit brought by anti-abortion doctors was being litigated.
In 2024, the justices rejected that lawsuit, ruling that the doctors lacked a legitimate basis to challenge the FDA's decisions.
Republican-led states vowed to continue the fight.
Danco, in its emergency appeal, told the Supreme Court that Louisiana's lawsuit shares the same problems as the challenge brought by the anti-abortion doctors.
"Louisiana’s complaint should have been dismissed outright," the drug maker said.
Danco also said the ruling “injects immediate confusion and upheaval into highly time-sensitive medical decisions,” forcing the drug maker, the FDA, patients and pharmacies to guess at what is allowed and what is not.
“Never before has a federal court purported to immediately enjoin a several years’ old drug approval; restrict a distribution system for that drug that manufacturers, providers, patients, and pharmacies have all been using for years; or reinstate conditions that FDA determined do not meet the mandatory statutory criteria,” lawyers for the company wrote.