Supreme Court, over two dissents, upholds abortion pills sent by mail, for now
WASHINGTON — The Supreme Court on Thursday rejected an antiabortion challenge to federal regulations that permit sending pills through the mail once a patient has consulted a doctor online.
The justices granted an emergency appeal from the makers of mifepristone and set aside an order from a U.S. appeals court in Louisiana that would have made it illegal to send or receive the medication by mail.
Justices Clarence Thomas and Samuel A. Alito Jr. dissented.
“The court’s unreasoned order granting stays in this case is remarkable,” Alito wrote. “What is at stake is the perpetration of a scheme to undermine our decision in Dobbs v. Jackson Women’s Health Organization, which restored the right of each State to decide how to regulate abortions within its borders.”
The decision is a setback for abortion opponents, including Louisiana Atty. Gen. Liz Murrill, who sued and argued that her state’s ban on abortion has been thwarted by abortion pills sent by mail.
Thursday’s order preserves access to the medication under the current rules, but it is not a final decision.
The case will now return to the 5th Circuit Court in New Orleans for further review.
“Today’s ruling buys time, but no peace of mind,” said Nancy Northup, president of the Center for Reproductive Rights. “Mifepristone access remains highly at risk as this case moves forward and the Trump administration conducts a politically motivated review of this pill with the hardly disguised aim of making it harder to get.”
National Right to Life expressed deep disappointment.
“Women facing unexpected pregnancies deserve real medical care and support, not a one-size-fits-all mail-order abortion system that minimizes risks and leaves women isolated during medical emergencies,” said Carol Tobias, the group’s president.
The legal dispute has put the Trump administration in a politically awkward spot.
Critics of abortion, including Republican attorneys general from 23 states, argued that the regulations adopted during the Biden administration have thwarted their state laws and allowed patients to obtain medication from doctors in California and New York.
But the Trump administration has shown no urgency to change the regulations that allow for dispensing the pills by mail.
Alito, who spoke at the 5th Circuit a week ago, said he agreed with the state’s argument.
“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. “These medical providers and private organizations have developed an operation enabling women in Louisiana and other States that restrict abortions to place an online order for a pill called mifepristone that induces abortion.”
Thomas said abortion is a crime in Louisiana.
The makers of the abortion pills have no grounds to sue “based on lost profits from their criminal enterprise. They cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes.”
But most of the court’s conservatives refused to go along, even though they had voted to overturn the constitutional right to abortion.
Chief Justice John G. Roberts and Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett refused to block the current regulations on a fast-track appeal.
Two years ago, the court handed down a similar decision involving abortion pills and the 5th Circuit Court.
The justices overturned a 5th Circuit ruling on the grounds that the antiabortion doctors who sued had no standing because they did not prescribe or use the medication.
In 2000, the FDA approved the use of mifepristone as safe and effective for ending an early pregnancy or treating a miscarriage. It is used in combination with a second drug misoprostol, which induces cramping.
Since 2016, the FDA has relaxed regulations on its use. They include a requirement that women obtain the pills directly from a doctor or a medical clinic. However, it was understood the medication would be taken later at home.
The agency temporarily suspended this rule in 2021 in response to the COVID-19 pandemic, then lifted it entirely in 2023.
Medication abortions now account for almost two-thirds of abortions in the United States, and telehealth is used in 27% of abortions nationwide. Last year, in response to abortion opponents, the Trump administration agreed to review the safety record of mifepristone.
“Mifepristone is one of the safest and most well-studied drugs on the market,” said Dr. Camille A. Clare, president of the American College of Obstetricians & Gynecologists. “The FDA removed the in-person dispensing requirement after careful evaluation of the data because mifepristone is safe and effective even when distributed by mail.”
But the Louisiana attorney general decided to sue in federal court without waiting for the FDA.
She argued that the mailing of abortion medication, which was approved under the Biden administration, was undermining her state’s strict ban on abortions.
A federal judge in Louisiana said the state appeared to have a strong claim, but he decided not to rule on it until the FDA completed its review.
The 5th Circuit Court of Appeals responded a few days later by ruling the FDA erred by relaxing its regulations to allow for dispensing the pills by mail. The three-judge panel then put its ruling into effect immediately on May 1.
Abortion law experts called out the decision as extreme and unusual.
“To our knowledge, no court has ever ordered the FDA to reimpose on a drug a safety rule the agency has thoroughly studied and deemed unnecessary,” said Melissa Goodman, executive director of UCLA’s Center for Reproductive Health, Law and Policy.
