Supreme Court allows mail-order of abortion pill mifepristone pending appeal

The Supreme Court on Thursday said it would allow mail orders of the abortion drug mifepristone pending the outcome of an appeal challenging that method of distributing the medication.

The Supreme Court did not say how many members of the nine-justice court voted in favor of continuing a stay of a lower-court order that blocked mail orders of mifepristone. Nor did the majority issue an explanation of its decision.

Two conservative justices on the Supreme Court, Clarence Thomas and Samuel Alito, issued written dissents to the decision that indefinitely extended the temporary stay that the Supreme Court issued on May 4.

The state of Louisiana, which bans abortion in nearly all cases, sued the Food and Drug Administration over its 2023 decision to lift a rule requiring mifepristone to be administered in person. That rule was lifted a year after the Supreme Court overturned its nearly 50-year-old precedent that said there was a federal constitutional right to abortion.

After a federal district court judge denied Louisiana’s request to block mail orders of mifepristone while its lawsuit was pending, the state appealed to the 5th Circuit U.S. Court of Appeals, which on May 1 issued a nationwide ban on mail orders of the drug as the case played out.

Two drugmakers, Danco Laboratories and GenBioPro, then asked the Supreme Court to lift that ban on mifepristone being distributed via mail.

In his dissent, Thomas noted that the companies “complain that the Fifth Circuit’s order would reduce profits they derive from selling mifepristone.”

“I would deny their applications because they have not satisfied their burden for securing interim relief,” Thomas said.

“I write separately to note that, as Louisiana argued below, it is a criminal offense to ship mifepristone for use in abortions,” Thomas wrote. “The Comstock Act bans using ‘the mails’ to ship any ‘drug . . . for producing abortion.’ “

“Applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise,” he wrote. “They cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes.”

Alito, in his own dissent, called the majority’s decision to grant a stay in the case “remarkable.”

“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,” Alito wrote.