The United States Supreme Court has moved to continue allowing women access to mifepristone, a drug used in medication-induced abortions, by mail while a challenge to the FDA’s policies winds its way through the lower courts.
This comes after the Supreme Court issued two temporary stays earlier this month while they reviewed briefs submitted by parties on both sides.
The Court’s order halted a 5th Circuit ruling temporarily banning mifepristone from being distributed by mail nationwide, regardless of how individual states have chosen to regulate access to abortions and abortion medication.
Thursday’s order does not provide any additional insight into the Justice’s reasoning for granting the stay, but Justices Clarence Thomas and Samuel Alito dissented from the majority, each offering an explanation for their position.
Justice Thomas argued that the drug companies seeking the stay did not satisfy their burden for “for securing interim relief,” citing a provision of the Comstock Act banning use of “the mails” to ship drugs that produce abortions.
“Applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise,” wrote Thomas. “They cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes.”
Justice Alito explains that what is at stake in this case “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.”
He goes on to argue that the drug companies have not shown “any imminent risk of irreparable injury” and are therefore ineligible to have their request for a stay granted.
Click Here to Read the Full Order
The Supreme Court unanimously ruled in 2024 to allow the FDA’s more relaxed regulation of mifepristone to stand, marking the first time that the Court had considered an abortion-related case since overturning Roe v. Wade in 2022.
In the unanimous opinion authored by Justice Brett Kavanaugh, the Court explained that its decision to allow the FDA to authorize mail-delivery of mifepristone rested on the fact that the plaintiffs who brought the case “lack[ed] Article III standing to challenge FDA’s actions regarding the regulation of mifepristone.”
Consequently, the Justices reversed the Fifth Circuit ruling in favor of the plaintiffs and remanded the decision for further proceedings consistent with its opinion.
According to the FDA’s website, mifepristone “blocks a hormone called progesterone that is needed for a pregnancy to continue.”
“Mifepristone, when used together with another medicine called misoprostol, is used to end a pregnancy through ten weeks gestation,” the FDA explains.
Mifepristone was first approved by the FDA in 2000 for use in medication abortions up to seven weeks into a pregnancy. This time frame was extended to ten weeks in 2016.
[RELATED: SCOTUS Allows Continued Mail Distribution of Abortion Drug After Pause by 5th Circuit]
In 2025, Louisiana filed a lawsuit in federal court seeking to reinstate the in-person dispensing requirement for mifepristone.
The state argued in its filing that they had standing to bring a case because they had “incontrovertible evidence that … doctors and others are (as the Biden administration intended) sending streams of mifepristone by mail into Louisiana for the express purpose of causing thousands of abortions in Louisiana every year.”
Under Louisiana law, nearly all abortions are illegal, except when necessary to save the life of the mother.
Joining the state’s lawsuit was Rosalie Markezich, an individual plaintiff who said she was coerced into taking abortion drugs “that her boyfriend obtained via the U.S. Postal Service from a doctor in California.”
Had the in-person dispensing requirement been in effect, she argued, she “would have received the protection of a private in-person medical appointment,” during which she would “have been able to tell a doctor that she did not want an abortion.”
A federal judge put the case on hold pending the FDA’s review of mifepristone’s safety, but Louisiana brought its claims to the 5th Circuit, seeking to have the in-person mandate reinstated while litigation continues.
In its emergency application to the Supreme Court, the drug companies argued that “Louisiana is not required to ‘prescribe or use mifepristone’ or to ‘do anything or to refrain from doing anything’ as a result of FDA’s actions.”
Consideration of this case will now continue at the lower court level as access by mail to mifepristone remains available.
