In an emergency ruling, the justices said mail-order access to mifepristone can be maintained while Louisiana objects to expanded access.
Abortion pills are under RFK Jr.’s watch
USA TODAY wellness reporter Alyssa Goldberg covers why the abortion drug mifepristone will be reviewed by the FDA.
WASHINGTON – The Supreme Court on May 14 ensured full access to the widely used abortion drug mifepristone remains as a battle over mail-order prescriptions continues.
Without court intervention, access to mifepristone would have been significantly and indefinitely restricted for the first time since it was first approved in 2000.
In response to an urgent request from pharmaceutical companies, the court suspended a ruling that required the drug to be prescribed and dispensed directly by a doctor. The decision, handed down over the dissent of conservative Justices Clarence Thomas and Samuel Alito, upholds the Food and Drug Administration’s rules for mifepristone as Louisiana challenges expanded access to mifepristone through telemedicine.
In an unprecedented move, the conservative 5th U.S. Circuit Court of Appeals on May 1 ordered the agency to change rules regarding approved drugs in response to the Louisiana lawsuit.
This has thrust the politically radioactive issue of abortion, which the Trump administration had hoped to avoid, back into the spotlight during an election year. The Justice Department did not consider what it thought the Supreme Court should rule, even though the case concerns federal regulations.
“I’m not thinking about anything.”
The court’s brief, unsigned order does not indicate what the justices will ultimately rule on the underlying legal issues if the case returns to the high court, as expected.
“Today’s ruling buys us time, but it doesn’t give us peace of mind,” said Nancy Northup, director of the Center for Reproductive Rights. “Access to mifepristone remains at high risk as this case evolves and the Trump administration conducts politically motivated reviews of the drug with the ostensible purpose of making it harder to obtain.”
Marjorie Dannenfelser, president of Susan B. Anthony Pro-Life America, said the Trump administration should resolve the lawsuit and “resume immediate in-person dispensing while proceeding without delay with a comprehensive safety review of mifepristone.”
Anti-abortion groups are outraged by the rise in abortions in the United States since the U.S. Supreme Court overturned the federal constitutional right to abortion in 2022.
“Despite Louisiana’s policies and laws, hundreds of abortions are performed in Louisiana every month,” Louisiana Attorney General Liz Murrill said in a Supreme Court filing.
Lower courts have limited access nationwide
In a May 1 ruling, the appeals court said Louisiana was likely to prevail on the challenge and blocked access to mail-order sales while the case progressed. The nationwide order would restrict access even in states where abortion is legal.
Danko Laboratories, which makes Mifeprex, the brand-name version of Mifepristone, said the impact of its decision was “direct, immediate, and chaotic.”
“Patients could not even pick up prescriptions in person at pharmacies, and health care providers did not know whether they could continue to prescribe mifepristone,” the drug company’s lawyers wrote in their appeal to the Supreme Court.
Alito suspended the lower court’s ruling on May 4 to give the full court time to respond.
Thomas: Pharmaceutical companies profit from ‘criminal enterprise’
Alito said doctors are using telemedicine to oppose the court’s order to maintain full access to mifepristone and override the court’s 2022 Dobbs v. Jackson Women’s Health Authority decision, which allowed states to ban abortions. Abortion is illegal in Louisiana except in special circumstances.
Alito said drug companies “clearly know what’s going on, but they’re still supplying the drugs and profiting from their felonious use in Louisiana.”
Thomas similarly wrote that the Supreme Court should not help drug companies profit from their “criminal enterprises,” citing long-dormant obscenity laws that prohibit the mailing of anything that is “obscene or pornographic” or that could cause an abortion.
“They should not be irreparably harmed in any legally relevant sense by a court order that makes criminal activity more difficult,” he said.
The Supreme Court rejected the previous challenge.
Danko argues that Louisiana’s challenge should be dismissed on the same grounds that justices rejected a similar lawsuit brought by anti-abortion doctors in 2024.
In that case, the court said the doctors could not sue because they had not shown they were sufficiently harmed by the FDA’s loosening of mifepristone regulations in 2023.
Louisiana argues that making mifepristone more readily available to women in the state would undermine the state’s ability to enforce anti-abortion laws. State officials also said Louisiana’s Medicaid program had to pay $92,000 for emergency treatment for two women who developed complications after taking mifepristone.
Danko said the Supreme Court rejected similar arguments for downstream economic harm in rejecting anti-abortion doctors’ lawsuits.
Several Republican-led states are pursuing mifepristone.
Several Republican-led states, including states that largely ban abortions, are trying to make it harder for women to access mifepristone, a pill used in nearly two-thirds of abortions nationwide.
But GenBiopro, which makes the generic Mifeprex drug, told the Supreme Court on appeal that “Louisiana is the only state seeking such drastic preliminary relief.”
The Trump administration’s FDA is currently reviewing the drug’s safety. Major medical groups, including the American College of Obstetricians and Gynecologists, say the science behind the agency’s previous decision is sound.
“Mifepristone is extremely safe whether dispensed in person or via telemedicine,” multiple physician organizations said in a Supreme Court filing. “More than 20 years, hundreds of medical studies, and vast amounts of data support this.”
In January, the administration asked a judge to suspend Louisiana’s challenge until the FDA’s review is complete.
A federal judge agreed. But the appeals court blocked that ruling, saying the in-person dispensing requirement should be reinstated while Louisiana appeals the judge’s decision.
