In a pivotal decision on Thursday, the Supreme Court upheld the availability of a drug integral to the most prevalent abortion method, effectively countering restrictions imposed by lower courts while a lawsuit is ongoing.
This ruling ensures that women can continue to access mifepristone, a key medication, through pharmacies or by mail, without necessitating an in-person consultation with a healthcare professional. The status quo is expected to remain at least until the case fully unfolds, which might include an appeal to the Supreme Court itself.
The order came in response to urgent petitions from the drug’s manufacturers who are challenging a federal appeals court’s decision that would have mandated in-person doctor visits and ceased mail delivery of mifepristone. This would have marked a significant rollback of current practices.
The FDA, which originally sanctioned mifepristone for abortion use in 2000, eliminated the requirement for in-person doctor visits five years ago, aligning with evolving healthcare practices and accessibility considerations.
However, not all justices were in agreement. Justices Clarence Thomas and Samuel Alito expressed their dissent. Thomas notably criticized the order, arguing that the pharmaceutical companies, Danco Laboratories and GenBioPro, should not be shielded from what he described as “lost profits from their criminal enterprise.”
Justices Clarence Thomas and Samuel Alito dissented, with Thomas writing that the two companies, Danco Laboratories and GenBioPro, are not entitled to the court’s action to spare them “lost profits from their criminal enterprise.”
Anti-abortion groups, frustrated with President Donald Trump’s administration, are pushing the FDA to move faster with a review that they hope will result in restrictions on mifepristone, including blocking its prescribing via telehealth platforms.
The Republican administration says the work takes time.
Earlier this week, FDA Commissioner Marty Makary resigned after months of criticism from Trump’s political allies, including abortion opponents.
Susan B. Anthony Pro-Life America and similarly aligned groups had called on Trump to fire Makary over the slow pace of the mifepristone review.
The court is dealing with its latest abortion controversy four years after its conservative majority overturned Roe v. Wade and allowed more than a dozen states to effectively ban abortion outright.
The case before the court stems from a lawsuit Louisiana filed to roll back the Food and Drug Administration’s rules on how mifepristone can be prescribed.
The state claims that the policy undermines the ban there, and it questions the safety of the drug, which has repeatedly been deemed safe and effective by FDA scientists.
Alito, who wrote the opinion overturning Roe, agreed that the state’s efforts have been thwarted by medical providers and private organizations that mail the pills to women in Louisiana, despite the abortion ban. Danco and GenBioPro “are obviously aware of what is going on yet nevertheless supply the drug and reap profits from its felonious use in Louisiana,” he wrote.
Thomas said those who mail the pills are in violation of the Comstock Act, a 19th-century law that has long gone unenforced and bans mailing any “article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion.”
Lower courts concluded that Louisiana is likely to prevail, and a three-judge panel of the 5th US Circuit Court of Appeals ruled that mail access and telehealth visits should be suspended while the case plays out.
The drug is most often used for abortion in combination with another drug, misoprostol.
Medication abortions accounted for nearly two-thirds of all abortions in the US in 2023, the last year for which statistics are available.
Telehealth prescribers were prepared to switch to sending abortion patients a regimen that uses only misoprostol.
While Thursday’s ruling keeps the status quo in place for now, abortion-rights advocates warn that the case isn’t settled forever.
“We are relieved that access to mifepristone remains protected for now, but this should never have been on the table in the first place,” Serra Sippel, executive director of The Brigid Alliance, which helps coordinate and fund travel and other logistics to assist women traveling for abortion, said in a statement. “Patients and providers should not be forced to wait on court rulings to know whether people can access critical health care.”
The decision is “extremely disappointing” but not a defeat, said Gavin Oxley, a spokesperson for the anti-abortion advocacy group Americans United for Life. “The Supreme Court still has the opportunity to hear the case in full and bring justice to Louisiana,” he said.
The current dispute is similar to one that reached the court three years ago, when the justices blocked a 5th Circuit ruling in a suit filed by anti-abortion doctors and kept mifepristone widely available, over dissents from Alito and Thomas.
Then, in 2024, the high court unanimously dismissed the doctors’ suit, reasoning they did not have the legal right, or standing, to sue.
In the current dispute, mainstream medical groups, the pharmaceutical industry and Democratic members of Congress have weighed in cautioning the court against limiting access to the drug.
Pharmaceutical companies said a ruling for abortion opponents would upend the drug approval process.
Debate over the safety of mifepristone has churned for more than 25 years. The FDA has eased a number of restrictions initially placed on the drug, including who can prescribe it, how it is dispensed and what kinds of safety complications must be reported.
Despite those determinations, anti-abortion groups have filed a series of petitions and lawsuits against the agency, generally alleging that it violated federal law by overlooking safety issues with the pill.
Trump’s administration has been unusually quiet at the Supreme Court. It declined to file a written brief recommending what the court should do, even though federal regulations are at issue.
The case puts the administration in a difficult place.
Trump has relied on the political support of anti-abortion groups but has also seen ballot question and poll results that show Americans generally support abortion rights.
Both sides took the administration’s silence as an implicit endorsement of the appellate ruling.
