Supreme Court keeps abortion pill widely available as challenge continues

WASHINGTON – The Supreme Court on May 14 ensured that full access to the widely used abortion drug mifepristone will remain as the battle over mail-order prescriptions continues.

Without the court’s intervention, access to mifepristone would have been significantly and indefinitely curtailed for the first time since it was first approved in 2000.

In response to an emergency request from drugmakers, the court paused a ruling that the drug must be prescribed and dispensed in person by a doctor. That decision − made over the objections of conservative Justices Clarence Thomas and Samuel Alito − keeps the Food and Drug Administration's rules for mifepristone in place as Louisiana challenges expanded access to the drug through telemedicine.

In an unprecedented move, the conservative 5th U.S. Circuit Court of Appeals on May 1 ordered the agency to change its rules for an approved medication in response to Louisiana's lawsuit.

That thrust the politically radioactive issue of abortion back into the spotlight in the middle of an election year, something the Trump administration had hoped to avoid. The Justice Department did not weigh in on how it thought the Supreme Court should rule, even though the case is about federal regulations.

`No piece of mind'

The court’s brief and unsigned order does not indicate how the justices will ultimately rule on the underlying legal issues when, as expected, the case returns to the high court.

“Today's ruling buys time, but no peace of mind,” said Nancy Northup, head of the Center for Reproductive Rights. “Mifepristone access remains highly at risk as this case moves forward and the Trump administration conducts a politically motivated review of this pill with the hardly disguised aim of making it harder to get."

Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, said the Trump administration should settle the lawsuit and “restore in-person dispensing immediately, while moving forward on a comprehensive safety review of mifepristone without delay.”

Anti-abortion groups are upset that abortions have risen in the United States since the Supreme Court, in 2022, overturned a federal constitutional right to an abortion.

"Notwithstanding Louisiana's policy and laws, hundreds of abortions are occurring every month in Louisiana," Louisiana Attorney General Liz Murrill told the Supreme Court in a filing.

Lower court limited access nationwide

In its ruling May 1, the appeals court said Louisiana was likely to win its challenge and blocked mail-order access while the litigation plays out. That nationwide order would have restricted access even in states where abortion is legal.

Danco Laboratories, which makes Mifeprex, the brand-name version of mifepristone, said the impact of that decision was "direct, immediate, and chaotic."

"Patients could not pick up prescriptions even in-person at pharmacies; providers did not know if they could continue prescribing mifepristone," lawyers for the drug company told the Supreme Court in their appeal.

Alito temporarily paused the lower court's ruling on May 4 to give the full court time to respond.

Thomas: drug makers are profiting from a `criminal enterprise'

In his dissent from the full court's order maintaining complete access to mifepristone, Alito said doctors are using telemedicine to undermine the court's 2022 decision, Dobbs v. Jackson Women's Health Organization, which allowed states to ban abortion. Abortion is illegal in Louisiana except in narrow circumstances.

The drug makers, Alito said, "are obviously aware of what is going on yet nevertheless supply the drug and reap profits from its felonious use in Louisiana."

Thomas similarly wrote that the Supreme Court should not help drug makers profit from their "criminal enterprise," referring to a long-dormant obscenity law that prohibits mailing "lewd or lascivious" material, as well as anything that could be used to cause an abortion.

"They cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes," he said.

Supreme Court rejected previous challenge

Danco argues that Louisiana’s challenge should be rejected for the same reasons the justices in 2024 tossed out a similar lawsuit brought by anti-abortion doctors.

In that case, the court said the doctors couldn’t sue because they hadn’t shown they were sufficiently harmed by the FDA’s loosening of the regulations for mifepristone in 2023.

Louisiana argues the state's ability to enforce its anti-abortion laws is harmed by the ability of women in the state to more easily access mifepristone. State officials also say Louisiana's Medicaid program had to pay $92,000 for the emergency care of two women who had complications after taking mifepristone.

Danco said the Supreme Court rejected a similar argument about downstream economic injuries when dismissing the anti-abortion doctor's lawsuit.

Multiple GOP-led states are going after mifepristone

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.

But Louisiana "is alone in seeking such sweeping preliminary relief," GenBioPro, which makes a generic version of Mifeprex, told the Supreme Court in its appeal.

The Trump administration's FDA is now reviewing the safety of the drug. Major medical groups, including the American College of Obstetricians and Gynecologists, say the science behind the agency’s previous decision is solid.

“Mifepristone − whether dispensed in person or via telehealth − is extremely safe," multiple medical associations told the Supreme Court in a filing. "More than two decades, hundreds of medical studies, and vast amounts of data have confirmed this."

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.