Supreme Court leaves in place mail-order distribution of mifepristone during legal challenge

WASHINGTON (OSV News) — The U.S. Supreme Court on May 14 blocked an appeals court ruling that sought to pause a federal policy permitting mifepristone, sometimes called the abortion pill, to be dispensed through the mail.

The ruling in effect leaves in place a Food and Drug Administration policy issued by the Biden administration, which permitted mifepristone to be distributed by mail. The Trump administration has thus far left that regulation in place, prompting frustration from pro-life groups, and has sought to block state challenges to mifepristone, such as Louisiana’s.

A lower court previously granted the Trump administration’s request to pause Louisiana’s lawsuit challenging the FDA’s approval of mifepristone pending the FDA’s promised safety review of that drug, indicating the state could continue its challenge after that review. However, the status and timeline of the FDA’s review are still unclear.

The 5th U.S. Circuit Court of Appeals later granted a request from Louisiana to temporarily pause the policy during its challenge.

But on May 4, the high court temporarily blocked the appeals court ruling, directing Louisiana to respond to an appeal from Danco Laboratories, one of the pharmaceutical companies that manufactures the drug.

The state of Louisiana then, on May 7, asked the Supreme Court to uphold a temporary injunction issued by the 5th Circuit that would pause a federal policy permitting the distribution of mifepristone by mail.

In its filing, Louisiana argued the distribution of the drug — which is commonly, but not exclusively, used for abortion up to 10 weeks’ gestation — by mail violates its own state laws restricting abortion, resulting in what it called “approximately 1,000 illegal abortions in Louisiana each month.”

Justice Clarence Thomas and Samuel Alito dissented from the stay on the 5th Circuit’s ruling.

In his dissent, Alito seemed to concur with Louisiana, arguing, “The Court’s unreasoned order granting stays in this case is remarkable.”

“What is at stake is the perpetration of a scheme to undermine our decision in Dobbs v. Jackson Women’s Health Organization,” he argued, “which restored the right of each State to decide how to regulate abortions within its borders. Some States responded to Dobbs by making it even easier to obtain an abortion than it was before, and that is their prerogative. Other States, including Louisiana, made abortion illegal except in narrow circumstances.”

“But Louisiana’s efforts have been thwarted by certain medical providers, private organizations, and States that abhor laws like Louisiana’s and seek to undermine their enforcement,” he wrote.

Proponents of mifepristone — the first of two drugs used in a chemical or medication-based abortion — argue it is statistically safe for a woman to take at the early stages of pregnancy, and attempts to restrict it are an attempt to ban abortion outright. Opponents of the drug’s use for abortion argue there are significant risks to those who take it, particularly outside of medical settings, in addition to ending the life of an unborn child early in its development.

In court filings, the drug’s manufacturers have also argued the product is safe. The entire Senate Democratic caucus on May 14 also reintroduced a resolution defending the drug before the high court’s deadline.

The Catholic Church teaches that all human life is sacred from conception to natural death, and as such, opposes direct abortion.

However, the same drug combination has sometimes been used in recent years for miscarriage care, where an unborn child has already passed, a situation that Catholic teaching would hold as morally licit use.

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