U.S. Supreme Court Maintains Nationwide Mail Access To Mifepristone For Now

Mail access preserved

The U.S. Supreme Court on Thursday maintained mail access to mifepristone for now, setting aside a lower court order that had blocked abortion providers from prescribing the widely used drug through telehealth and shipping it to patients.

CBS News reported that the high court’s unsigned decision ensures that patients nationwide will continue to have broad access to mifepristone while litigation over the Food and Drug Administration’s relaxed policy for obtaining the drug brought by the state of Louisiana moves forward.

The Guardian said the court upheld nationwide access to mail-order mifepristone in a shadow-docket decision, after the fifth circuit ruled in Louisiana’s favor on 1 May and effectively banned mail-order mifepristone for the entire country.

In the dispute, Louisiana sued the FDA in October to curtail rules on prescribing mifepristone remotely, arguing that it interfered with the state’s ban on abortion.

The Guardian added that the court sided against the fifth circuit in a 7-2 decision with dissents from justices Clarence Thomas and Samuel Alito, ending the ban for now.

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Dissents and arguments

Justice Clarence Thomas dissented, and the Guardian reported that he called the mailing of mifepristone to patients “criminal enterprise”.

In a separate dissent, the Guardian said Alito argued that “What is at stake is the perpetration of a scheme to undermine our decision in Dobbs v. Jackson Women’s Health Organization,” referencing the 2022 decision that overturned Roe v. Wade.

SCOTUSblog described how Justice Samuel Alito, who handles emergency appeals from the U.S. Court of Appeals for the 5th Circuit, had last week temporarily put the lower court’s order on hold until 5 p.m. EDT on Monday, then extended that hold until Thursday at 5 p.m.

SCOTUSblog also said the court’s Thursday afternoon order extended the pause once again and “allows mifepristone to continue to be sent through the mail, while litigation continues in the lower courts.”

The Guardian reported that the court found Louisiana has no standing to challenge mail-order abortion and sent the case back to the fifth circuit.

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What’s at stake next

The Guardian said the decision came nearly a half hour after the court missed its own 5pm EST deadline and that the suit is expected to return to the court on an official appeal, instead of emergency requests from drug manufacturers, in another term. CBS News reported that the justices’ intervention arose out of a lawsuit Louisiana filed against the FDA last year that threatened to cut off mail access to mifepristone for women nationwide, including in states where abortion is legal. The Guardian warned that 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, even as the FDA has the power to regulate medications nationwide.

CBS News added that mifepristone is taken with a second drug, misoprostol, to terminate an early pregnancy, and that medication was used in 65% of all clinician-provided abortions in 2023, according to the Guttmacher Institute. In a statement carried by the Guardian, Jeanne Shaheen wrote on X that “Healthcare providers have safely prescribed mifepristone for decades – limiting access to this medication would be another blow to our hard-earned reproductive freedoms.”

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