WASHINGTON- The Supreme Court on Thursday rejected an anti-abortion challenge to federal regulations that allow pills to be mailed once a patient has seen a doctor online.
The justices accepted an emergency appeal from the makers of mifepristone and overturned an order by a U.S. appeals court in Louisiana that would have made it illegal to send or receive the drug through the mail.
Justices Clarence Thomas and Samuel A. Alito Jr. disagreed.
“The court's unreasoned order granting a stay of this case is notable,” 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 the Louisiana attorney. Gen. Liz Murrill, who sued and argued that her state's abortion ban has been thwarted by mail-in abortion pills.
Thursday's order preserves access to the drug under current rules, but is not a final decision.
The case will now return to the Fifth Circuit Court in New Orleans for further review.
“Today's ruling buys time, but not peace of mind,” said Nancy Northup, president of the Center for Reproductive Rights. “Access to mifepristone remains at high risk as this case progresses and the Trump administration conducts a politically motivated review of this pill with the thinly disguised goal of making it harder to obtain.”
National Right to Life expressed its 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 situation.
Abortion critics, including the Republican attorneys general of 23 states, argued that regulations adopted during the Biden administration have thwarted their state laws and allowed patients to obtain medications from doctors in California and New York.
But the Trump administration has shown no urgency to change the regulations that allow the pills to be dispensed by mail.
Alito, who spoke on the Fifth 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 that allows women in Louisiana and other states that restrict abortions to place an online order for an abortion-inducing pill called mifepristone.”
Thomas said abortion is a crime in Louisiana.
Manufacturers of abortion pills have no grounds to sue “for 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 conservatives on the court refused to accept it, even though they had voted to revoke the constitutional right to abortion.
Chief Justice John G. Roberts and Justices Neil M. Gorsuch, Brett M. Kavanaugh and Amy Coney Barrett declined to block the current rules in a fast-track appeal.
Two years ago, the court issued a similar ruling involving abortion pills and the Fifth Circuit Court.
The judges overturned a Fifth Circuit ruling on the grounds that the anti-abortion doctors who sued lacked standing because they did not prescribe or use the drug.
In 2000, the FDA approved the use of mifepristone as safe and effective for terminating a premature pregnancy or treating a miscarriage. It is used in combination with a second medication, misoprostol, which induces cramps.
Since 2016, the FDA has relaxed regulations on its use. They include a requirement that women obtain the pills directly from a doctor or medical clinic. However, it was understood that the medication would be taken later at home.
The agency temporarily suspended this rule in 2021 in response to the COVID-19 pandemic and then lifted it completely in 2023.
Medication abortions now account for nearly 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 mifepristone's safety record.
“Mifepristone is one of the safest and best-studied medications on the market,” said Dr. Camille A. Clare, president of the American College of Obstetricians and Gynecologists. “The FDA waived the in-person dispensing requirement after careful evaluation of the data because mifepristone is safe and effective even when distributed by mail.”
But Louisiana's attorney general decided to file a lawsuit in federal court without waiting for the FDA.
He argued that mailing abortion drugs, which was approved under the Biden administration, was undermining his state's strict ban on abortions.
A federal judge in Louisiana said the state appeared to have a strong claim, but decided not to rule on it until the FDA completed its review.
The Fifth Circuit Court of Appeals responded a few days later, ruling that the FDA was wrong to relax its regulations to allow distribution of the pills by mail. The three-judge panel put its ruling into effect immediately on May 1.
Abortion law experts called the decision extreme and unusual.
“To our knowledge, no court has ever ordered the FDA to reimpose on a drug a safety rule that the agency has carefully studied and deemed unnecessary,” said Melissa Goodman, executive director of the UCLA Center for Reproductive Health, Law and Policy.
