Supreme Court Extends Pause on Abortion Pill Restrictions

The Supreme Court on Thursday issued an order maintaining access to mifepristone by mail while litigation continues in lower courts. The order blocks a ruling from the U.S. Court of Appeals for the 5th Circuit in Louisiana. The 5th Circuit ruling would have prevented the mailing of mifepristone, one of two drugs used in medication abortions.

Justice Samuel Alito had previously issued a temporary hold on the 5th Circuit's order, which the Supreme Court has now extended. The court's order, delivered after a series of extensions, allows the drug to be sent through the mail during the ongoing legal challenges in lower courts.

Justices Clarence Thomas and Samuel Alito dissented from the decision. Thomas argued that the drug companies would not be irreparably harmed by an order making it more difficult for them to commit crimes. Alito called the court's decision "remarkable," saying the distribution undermined the Supreme Court's 2022 decision in *Dobbs v. Jackson Women’s Health Organization*, which eliminated the constitutional right to an abortion that had been established in *Roe v. Wade*.

The legal challenge to mifepristone dates back to 2023, initiated by doctors and medical groups opposed to abortion. U.S. District Judge Matthew Kacsmaryk rescinded the Food and Drug Administration's (FDA) initial approval of the drug from 2000, as well as expansions of access from 2016 and 2021. These expansions had allowed the drug's use through the 10th week of pregnancy, prescription by healthcare providers who are not physicians, and dispensation without an in-person visit.

The 5th Circuit determined the challenge to the FDA's original approval was filed too late, but it upheld Kacsmaryk’s rollback of the 2016 and 2021 changes that expanded access.

The FDA and Danco Laboratories, a manufacturer of mifepristone, appealed to the Supreme Court. In 2024, the Supreme Court ruled that the doctors and medical groups did not have the legal right to sue, or standing, to challenge the FDA’s expansion of access to mifepristone.

Louisiana subsequently filed a lawsuit in federal court seeking to reinstate the in-person dispensing requirement. After a pause while the FDA reviewed mifepristone’s safety, Louisiana appealed to the 5th Circuit. That court agreed Louisiana has a right to sue because the FDA’s actions have caused harm.

Danco and GenBioPro, another drug manufacturer, petitioned the Supreme Court to intervene, arguing Louisiana lacks standing to challenge the in-person dispensing requirement.

Louisiana countered that it has a legal right to sue because its sovereignty has been injured, its laws have been violated, and it has incurred costs due to the rollback of the in-person dispensing requirement.

Thomas, in his dissent, argued shipment of mifepristone violates the Comstock Act, which prohibits using the mail to ship drugs for producing abortion. Alito contended Louisiana's abortion ban is undermined by states with “shield” laws protecting doctors who send mifepristone into Louisiana.