Abortion-rights activists protested outside of the Supreme Court in March 2024, when the overall FDA authorization of the abortion pill mifepristone was challenged. It remained available after that case.
Jose Luis Magana/AP
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Jose Luis Magana/AP
The Supreme Court decided to keep the status quo in place for medication abortion access Thursday.
The high court’s order means the abortion pill mifepristone will remain available via telehealth as a case brought by Louisiana against the Food and Drug Administration proceeds through the lower courts.
The Supreme Court stayed a May 1 ruling from the New Orleans-based, U.S. 5th Circuit Court of Appeals which would have banned mifepristone from being mailed. The appeals court ruling would have applied to the whole country, not just states like Louisiana that have abortion bans.
Thursday’s decision came in the form of an order from the court issued around 5:30 p.m., about 30 minutes past a deadline the court set for itself.
Justices Samuel Alito and Clarence Thomas dissented publicly and wrote about their dissents in the order.
In his dissent, Alito railed at his fellow justices calling the order “unreasoned” and “remarkable.”
“What is at stake is the perpetration of a scheme to undermine our decision in Dobbs,” Alito writes, referring to the majority opinion that he authored that overturned Roe v. Wade.
Dobbs “restored the right of each State to decide how to regulate abortions within its borders,” Alito continues.
How telehealth abortion works
The telehealth abortion process starts with a patient connecting with a healthcare provider on the phone or online. If the patient is eligible, the provider can prescribe two medications — mifepristone and another drug called misoprostol. Patients can pick up the medicine at a local pharmacy, or providers can mail the drugs to a patient’s home.
That access is a big part of the reason why the number of abortions nationally has actually increased since the Supreme Court overturned the constitutional right to abortion in 2022. Now, most abortions in the U.S. use this combination of medications, and one quarter happen via telemedicine.
After the 5th Circuit ruling on May 1, some providers said they would continue offering telemedicine access to abortion medication using a different protocol that involves higher doses of misoprostol and no mifepristone. Researchers say that method is just as safe and effective, but tends to cause more side effects for patients, like nausea and diarrhea.
Who weighed in
Nearly two dozen Democratic-led states submitted an amicus brief in this case, writing that the appeals court decision put the policy choices of states with bans above the choices of states “that have made the different but equally sovereign determinations to promote access to abortion care.” A similar number of Republican-led states filed an amicus brief in support of Louisiana’s case.
There are also stakes related to the power of FDA and other expert agencies to set rules. While the Trump administration’s FDA did not respond to the Supreme Court’s request for briefs, a group of former leaders of the agency, who served under mainly Democratic and some Republican presidents, wrote about this in an amicus brief. They defended the FDA’s process in approving the medication and modifying the rules for prescribing it, and say the appeals court decision “would upend FDA’s gold-standard, science-based drug approval system.”
The drug industry’s trade group, PhRMA, also submitted an amicus brief urging the Supreme Court not to meddle with FDA’s rules for mifepristone. The brief says that drug makers “share a significant interest in protecting against disruptions to the stable and predictable statutory framework Congress created to govern” the FDA.
FDA is MIA
One twist in this story is the FDA, the named defendant in the lawsuit, filed no brief to the justices about this case.
“The Trump administration quite clearly hasn’t known how to deal with this issue from the beginning and has been trying to essentially kick the can down the road, at least until after the midterm [election], to avoid either angering base voters or swing voters who don’t see eye to eye on what the administration’s abortion policy should be,” Mary Ziegler, law professor at University of California Davis told NPR this week. “So I think the administration not doing anything is in some ways consistent with what we’ve seen so far, just because this is a tricky issue politically.”
This week, FDA’s commissioner Dr. Marty Makary resigned under pressure from the White House. It’s not clear if this lawsuit played a role in his ouster, but anti-abortion rights groups were vocal about their displeasure with how little he did to restrict abortion in that role.
