The Supreme Court rejected a last-minute attempt to cut off Americans' access to mifepristone by mail, preserving one of the most common methods of abortion across the country in a 7-2 decision that split the court along ideological lines.
Louisiana had sued the FDA seeking to block remote prescribing of the medication, arguing that allowing it to be mailed to residents violated the state's abortion ban. In May, a federal appeals court sided with Louisiana, temporarily halting mail-order mifepristone nationwide. The Supreme Court intervened Thursday evening, staying that ban and ruling that Louisiana lacked legal standing to mount the challenge.
The decision came as drug manufacturers sought emergency relief, and the court issued its ruling nearly 30 minutes past its own 5pm deadline. Justices Clarence Thomas and Samuel Alito dissented sharply, with Thomas calling the mailing of mifepristone a "criminal enterprise" and invoking an 1873 anti-obscenity law known as the Comstock Act that he argued should apply to the medication.
Alito warned in his dissent that allowing mail access represented an effort to "undermine" the court's 2022 Dobbs decision that eliminated the federal constitutional right to abortion and returned regulation to the states.
The ruling sends the case back to the lower court for further proceedings, but the underlying legal fight is far from over. Legal experts expect Louisiana to pursue a full appeal on the merits, rather than through emergency requests, potentially returning to the Supreme Court next term.
Medication abortion now accounts for roughly two-thirds of all abortions performed in the United States. The availability of mifepristone by mail has proven crucial in maintaining abortion access in states with near-total bans, as many women can obtain the drug through telehealth appointments and receive it at home.
In 2023, the FDA eliminated its requirement that patients pick up mifepristone in person, a change that expanded remote access significantly. The agency had been in the process of conducting a safety review of the medication when the legal dispute erupted. Years of research have confirmed that abortion medications are safe and effective, though legal challenges mounted after Dobbs have centered on regulatory and statutory arguments rather than scientific ones.
Louisiana's lawsuit rested on two primary claims. First, the state argued that the FDA's 2023 decision lacked scientific basis and therefore violated the Administrative Procedure Act. Second, Louisiana invoked the 1873 Comstock Act, claiming its broad language prohibiting the mailing of items "designed or intended for the prevention of conception or procuring an abortion" applied to mifepristone.
The same law firm, Alliance Defending Freedom, that lost a similar case at the Supreme Court in 2024 is now representing Louisiana. In that earlier case, the court found that anti-abortion groups challenging the FDA's rules on mifepristone dispensing lacked standing because they could not demonstrate concrete harm.
A broader concern looms over the litigation. Legal analysts have raised questions about whether allowing a single state to effectively regulate a medication nationwide could set a dangerous precedent for the pharmaceutical industry. The FDA maintains authority to regulate drug safety and prescribing rules across the country, and states retain their own power to set abortion policy within their borders.
Abortion providers have already begun preparing contingency plans. Should mifepristone become unavailable, they can resort to misoprostol alone, which can terminate a pregnancy but requires a longer treatment period and may cause additional discomfort for patients.
The FDA announced Thursday that it would continue its safety review and promised transparency by providing updates as key milestones are reached. Meanwhile, all 45 Democratic senators reintroduced a resolution affirming that mifepristone is safe and effective, emphasizing that any policy governing the medication must be grounded in peer-reviewed science and evidence.
Author James Rodriguez: "This temporary reprieve masks a deeper fight that will likely reach the Supreme Court again, and the Comstock Act argument is exactly the kind of obscure legal cudgel that could reshape abortion access far beyond mifepristone."
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