The Supreme Court has temporarily restored access through the mail to the abortion pill mifepristone, days after the 5th U.S. Circuit Court of Appeals ruled that the drug could only be accessed in person.
In a Monday order, Justice Samuel Alito paused the 5th Circuit’s ruling for at least a week. Alito requested that the parties file briefs by Thursday.
Louisiana sued the Food and Drug Administration last year over the agency’s 2023 guidance allowing abortion pills to be accessible via telemedicine. State officials argued that the FDA’s guidance violated Louisiana’s abortion bans and went against the Comstock Act, federal laws that prohibit the shipment of “every article or thing designed, adapted or intended for producing abortion.”
Danco Laboratories and GenBioPro, two abortion pill manufacturers, intervened in the lawsuit to defend mifepristone’s availability through the mail.
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A panel of judges from the 5th Circuit agreed with Louisiana in last week’s opinion. The FDA’s guidance, the judges wrote, “creates an effective way for an out-of-state prescriber to place the drug in the hands of Louisianans in defiance of Louisiana law.”
The judges ruled that Louisiana “has strongly shown a likelihood of winning” its case against the FDA.
“Every abortion facilitated by FDA’s action cancels Louisiana’s ban on medical abortions and undermines its policy that ‘every unborn child is [a] human being from the moment of conception and is, therefore, a legal person,’” the judges wrote.
Shortly after the 5th Circuit issued its ruling, GenBioPro appealed to the Supreme Court, calling the lower court’s opinion “unprecedented.”
“The order eliminates nationwide access to mifepristone from certified pharmacies and by mail, thereby disrupting a status quo that has been in place for more than five years and upending the reasonable reliance of patients, providers, pharmacies, and drug sponsors across the country,” GenBioPro wrote in its brief.
A recent report from the Guttmacher Institute, a research organization that supports abortion rights, found that patients in states where abortion is banned are increasingly able to access abortion pills via telehealth. Mifepristone is considered safe and effective by leading medical organizations.
The Supreme Court’s order comes about two years after the justices dismissed a case that sought to restrict access to abortion pills. At the time, the court determined that the anti-abortion groups that brought the lawsuit lacked standing.
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