The US supreme court extended a short-term order to continue allowing nationwide access to mail-order mifepristone, an abortion medication, in a shadow-docket decision on Monday.
The US court of appeals for the fifth circuit in Louisiana ordered a ban on shipping mifepristone through the mail on 1 May, but Justice Samuel Alito, who responds to emergency requests from the fifth circuit, granted a temporary stay on 4 May to last until at least Monday’s decision. The emergency appeal to the court came from two mifepristone manufacturers.
Alito extended his 4 May order to continue allowing the pill’s distribution by telehealth and mail until at least 14 May while the court considers its next steps.
Louisiana sued the US Food and Drug Administration (FDA) last fall in an attempt to end the agency’s rules on prescribing mifepristone remotely, arguing the rules interfered with the state’s ban on abortion.
Former FDA leaders, researchers and lobbyists submitted amicus briefs in the case – but notably absent was the US government.
In 2023, the FDA ended a requirement to prescribe mifepristone in person, opening up remote dispensation via telehealth.
In 2024, the supreme court ruled on a similar case, FDA v the Alliance for Hippocratic Medicine, that challenged the FDA’s rules on how the drug is dispensed. The court found the coalition of anti-abortion groups did not have standing because they were unable to demonstrate how they were harmed.
The same law firm that represented the 2024 case, Alliance Defending Freedom, is now representing Louisiana in their suit.
This case, Louisiana v FDA, argues that because mifepristone may be mailed to anyone in the state, the practice circumvents its abortion ban. The state claimed the 2023 decision by the FDA was not based on science, which would violate the Administrative Procedure Act. Louisiana also argued that the FDA rules violate the Comstock Act, an obscure anti-obscenity law from 1873.
The FDA asked for more time to conduct a safety review of the medication; a judge ruled in April that the case would be on hold until that review is complete, but Louisiana appealed against the decision.
The case has potential repercussions for the entire drug industry. It would have allowed a single state to regulate medications for the country – going beyond the FDA. Each state may regulate access to abortion, but the FDA has the power to regulate medications nationwide.
Abortion providers have plans in place to offer an alternative medication regimen to patients. Misoprostol alone can end pregnancies, though it takes longer and thus some patients experience more discomfort.
