The Supreme Court ruled Thursday that the abortion medication mifepristone can continue to be prescribed via telehealth and sent to patients by mail. This decision temporarily blocks a nationwide restriction on the drug imposed by the conservative U.S. Court of Appeals for the Fifth Circuit, which had sought to limit access. The Supreme Court’s brief order means the Fifth Circuit’s decision will remain suspended, potentially for months, as litigation proceeds in lower courts. The issue could eventually return to the high court.
The majority of justices did not provide an explanation for their ruling, a common practice in emergency orders. Justices Clarence Thomas and Samuel A. Alito Jr. dissented, with Justice Alito labeling the majority’s order “remarkable” and criticizing it as “unreasoned.”
The Fifth Circuit’s May 1 ruling stemmed from a lawsuit filed by the State of Louisiana. The state sought to reinstate a requirement for patients to obtain mifepristone only after an in-person provider visit, a regulation the F.D.A. first lifted in 2021. This change had enabled individuals in Louisiana and other states with strict abortion bans to receive the pills by mail. Abortion pills are now used in nearly two-thirds of abortions in the United States, with approximately one-quarter involving telehealth consultations.
Following the Supreme Court’s 2022 decision to eliminate the nationwide right to abortion, legal challenges over the issue have persisted. Louisiana contended in its lawsuit that the F.D.A.’s decision to remove the in-person dispensing requirement was based on inadequate or flawed data. Medical organizations dispute this claim, citing over 100 studies that affirm mifepristone’s safety and the rarity of serious complications.
Louisiana Attorney General Liz Murrill claimed that prior regulations had led to about 1,000 “illegal abortions” monthly in the state and thousands of dollars in Medicaid costs for treating women allegedly harmed by mifepristone. In a Thursday statement, Ms. Murrill expressed shock, saying, “It’s shocking that the Supreme Court would block this common-sense return to medically ethical practices and oversight.” Justice Alito, in his dissent, echoed the state’s concerns, asserting that its ban had been “thwarted by certain medical providers, private organizations and states that abhor laws like Louisiana’s and seek to undermine their enforcement.” He further characterized the mailing of abortion medication into states with strict bans as a “perpetration of a scheme” to undercut the Supreme Court’s decision overturning Roe v. Wade, which, he noted, “restored the right of each state to decide how to regulate abortions within its borders.”
Manufacturers Danco Laboratories and GenBioPro had warned the justices that a ruling favoring Louisiana could cause widespread disruption to the pharmaceutical industry and encourage state-by-state scrutiny of drug regulations. They pointed to a similar challenge from anti-abortion doctors that the Supreme Court rejected two years prior, where the court unanimously found that the F.D.A.’s relaxed regulations had not caused direct harm sufficient for the doctors to have standing to sue. Abby Long, a spokeswoman for Danco, expressed relief on Thursday, stating that the Fifth Circuit’s ruling had been “unprecedented and immediately caused nationwide chaos and confusion for patients and providers prescribing.”
Throughout the lower court proceedings, Justice Department lawyers defended the F.D.A.’s position. However, the administration later chose not to file at the Supreme Court, taking no position on how the justices should rule. Julia Kaye, an attorney with the American Civil Liberties Union’s Reproductive Freedom Project, criticized this stance. In a Thursday statement, she said, “When nationwide access to a critical abortion and miscarriage medication was on the line, the Trump administration refused to defend the F.D.A.’s action.”
Medication abortion typically involves a two-drug regimen: mifepristone, which blocks pregnancy-sustaining hormones, followed 24 to 48 hours later by misoprostol, which induces contractions. The Louisiana case specifically targets mifepristone, approved by the F.D.A. for abortion in 2000; misoprostol, also used for other medical conditions, is not affected by the Fifth Circuit’s ruling.
Earlier, in April, a Louisiana district court judge indicated the state was likely to prevail in its challenge but declined to halt the mail-order availability of pills while the lawsuit progressed. Instead, the judge allowed the F.D.A. time to complete its safety review of mifepristone. In its subsequent ruling earlier this month, the Fifth Circuit sided with Louisiana, echoing the state’s arguments that the F.D.A.’s regulations were “undermining its laws protecting unborn human life” and “causing it to spend Medicaid funds on emergency care for women harmed by mifepristone.” The order was authored by Judge Stuart Kyle Duncan, a Trump appointee, joined by fellow Trump appointee Judge Kurt D. Engelhardt and Judge Leslie Southwick, appointed by President George W. Bush.
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