The Supreme Court on Thursday ruled that patients can, for now, continue to access by mail the most commonly used abortion pill, handing antiabortion advocates a defeat in their push to restrict medication abortion.
The justices struck down a decision by a U.S. appeals court in New Orleans that reinstated a requirement that patients pick up mifepristone in person, a mandate supporters of abortion rights have framed as the biggest threat to abortion access since the Supreme Court overturned Roe v. Wade in 2022.
The justices did not explain their reasoning, but the decision came over the objection of Justices Clarence Thomas and Samuel A. Alito Jr.
The court’s action extends a week-long pause on the appellate court decision that had been put in place by Supreme Court Justice Samuel A. Alito Jr. But it is not the end of the legal case brought by the state of Louisiana, which centers on whether women in states that ban or restrict abortion can legally access the medication.
Mifepristone is part of a typical two-drug combination for medication abortions, which have become the most common way of ending pregnancies in the United States.
In the years after Roe, abortion pills have become a major battleground for legal fights over the procedure.
The Supreme Court’s emergency ruling arose from a lawsuit by Louisiana, which has a near-total ban on abortion, against the Food and Drug Administration. The ruling remains in effect while that case plays out.
Louisiana is challenging an FDA rule laying out how mifepristone may be dispensed. While in-person access had once been required, the rule was relaxed under the Biden administration to preserve access to abortion during the coronavirus pandemic.
Louisiana argues that the Biden-era change undermines its restrictions on abortion and the sale of drugs such as mifepristone.
Earlier this month, the U.S. Court of Appeals for the 5th Circuit temporarily reinstated the in-person requirement at Louisiana’s request. The following day, two drugmakers appealed that ruling to the Supreme Court.
The greater availability of mifepristone has frustrated antiabortion groups and Republicans, who expected the post-Roe era to bring a drop in abortions. Instead, abortions have increased, largely because drugs such as mifepristone can be prescribed remotely via telehealth providers. Conservative attorneys and elected officials in states with abortion bans have since looked to curb access to abortion pills and punish the providers who mail them across state lines.
For years, legal experts and abortion rights advocates have said bringing back in-person dispensing would dramatically reshape abortion access. It would have the biggest impact on women living in more than a dozen states with strict abortion bans. Women living in states where the procedure remains legal would also have to figure out where they can get the pills, which could also involve travel if they live in a rural area.
“It will squeeze access points,” said Katie Keith, director of the Center for Health Policy and the Law at Georgetown University’s O’Neill Institute.
The FDA, citing a robust body of evidence showing mifepristone is safe and effective, approved it in 2000 to end early pregnancies. The drug is also used for treatment during miscarriages.
The FDA required it to be dispensed in person for two decades. In April 2021, the agency waived that rule because of the pandemic — one month before the Supreme Court agreed to hear Dobbs v. Jackson Women’s Health Organization.
Then, in December 2021, the Biden administration permanently eliminated the in-person mandate. That decision would later enable abortion rights groups to make abortion pills accessible in every state despite Roe’s end.
Starting in 2022, some Democratic-led states passed “shield laws” that allowed providers to send abortion pills to women across the country with safeguards to protect the clinicians from interstate prosecution.
Antiabortion advocates have also pressed the Trump administration to reimpose limits on mifepristone, but the administration has sidestepped those demands, pledging only that the FDA would conduct a safety review. In April, a federal judge in Louisiana put a hold on the state’s lawsuit for six months to give the FDA time to complete its review.
After the appeals court issued its ruling May 1, companies that make mifepristone and a generic version asked the Supreme Court to block the ruling. Alito issued a one-week administrative stay on May 4 to give the justices time to consider the appeals by Danco Laboratories, the maker of the drug, and GenBioPro, which manufacturers a generic version.
The legal action has received considerable and immediate attention. More than 20 Democratic-led states and 259 members of Congress who support abortion rights submitted friend-of-the-court briefs backing the drugmakers’ appeals.
“Many U.S. residents in states where abortion is legal live far from any reproductive health care provider,” the congressional lawmakers wrote in their brief. “Reinstating an in-person dispensing requirement for mifepristone exacerbates an already significant reproductive health crisis by limiting access to the most common method of early abortion.”
Days later, 113 members of Congress — led in part by House Speaker Mike Johnson (R-Louisiana), a staunch abortion opponent — submitted a brief to the court arguing for the in-person requirement to return.
“As delegated by Congress, the FDA’s job is to ensure drug safety, not to encourage the risky use of drugs just to further former President Biden’s pro-abortion agenda,” they wrote.
Abortion access presents a thorny political issue for the president and Republicans that could energize Democrats ahead of November’s midterm elections.
In its application to the Supreme Court, Danco called the 5th Circuit ruling “unprecedented.”
“Never before has a federal court purported to immediately enjoin a several years’ old drug approval; restrict a distribution system for that drug that manufacturers, providers, patients, and pharmacies have all been using for years; or reinstate conditions that FDA determined do not meet the mandatory statutory criteria,” attorneys wrote.
Louisiana, in its response, called the effect of the Biden administration rules expanding the availability of mifepristone “astounding.”
“Although Louisiana law generally prohibits abortion and the dispensing of mifepristone to pregnant women, out-of-state prescribers—freed from the in-person dispensing requirement—are causing approximately 1,000 illegal abortions in Louisiana each month by mailing FDA-approved mifepristone into the State,” attorneys wrote.
Five other GOP-led states with abortion bans are making claims similar to Louisiana’s in separate cases aiming to curtail abortion pill access.
In a closely watched Supreme Court case in 2024, the justices ruled that antiabortion doctors did not have legal standing to challenge the FDA’s approval of mifepristone. The decision preserved access to the drug. Three states have since revived that challenge.
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