Supreme Court continues to temporarily maintain mail access to abortion pill mifepristone

Washington — The Supreme Court on Monday extended a temporary order maintaining mail access to the widely used abortion pill mifepristone for now. 

Justice Samuel Alito said in a brief order that an administrative stay that he entered last week will remain in place until at least Thursday at 5 p.m. His move gives the Supreme Court additional time to consider whether to freeze an appellate court decision restoring a Food and Drug Administration rule that required mifepristone to be dispensed in person. 

Two pharmaceutical companies that manufacture the drug, Danco Laboratories and GenBioPro, had asked the Supreme Court earlier this month to set aside that ruling from the U.S. Court of Appeals for the 5th Circuit and continue allowing abortion providers to prescribe the drug online and send it to patients while legal proceedings continue. Alito handles emergency appeals arising from the 5th Circuit.

Mifepristone is taken together with a second drug, misoprostol, to terminate an early pregnancy. Medication was used in 65% of all clinician-provided abortions in 2023, according to the Guttmacher Institute, a research organization that supports abortion rights. 

But last year, Louisiana officials sued the FDA over its regulation allowing mifepristone to be mailed, which threatened to restrict access to the pill for women nationwide, including in states where abortion is legal. The state has argued that the FDA’s policy allows providers to circumvent its near-total ban on abortion. As a result, “streams of mifepristone” are sent into Louisiana by mail, leading to “thousands” of unlawful abortions each year, Louisiana officials said.

A federal district court had paused Louisiana’s case against the FDA last month while the agency reviews mifepristone’s safety. But Louisiana officials appealed that decision, and the 5th Circuit agreed to temporarily block the 2023 policy allowing mifepristone to be prescribed remotely and sent through the mail. 

“Every abortion facilitated by FDA’s action cancels Louisiana’s ban on medical abortions and undermines its policy that ‘every unborn child is human being from the moment of conception and is, therefore, a legal person,'” the unanimous 5th Circuit panel found.