The FDA approved mifepristone in 2000 as a medical abortion pill. Photo / Getty Images
United States Supreme Court Justice Samuel Alito jnr today issued an order that temporarily allows patients to continue accessing a widely used abortion pill through the mail.
The decision came after two drugmakers filed emergency appeals to the high court challenging a ruling last week from the US Court of Appeals for the 5th Circuit in New Orleans that reinstated a requirement that the drug, mifepristone, can only be picked up in person.
Danco Laboratories, the maker of the drug, and GenBioPro, which manufactures a generic version, both formally requested that the high court immediately pause the lower court’s ruling that made it harder for patients to access pills.
Today’s order allows mifepristone access through telehealth and mail until May 11 while the justices confer on how to proceed with the drugmakers’ requests to preserve mail access to the drug for now.
Last week’s ruling came in a lawsuit by the US state of Louisiana against the Food and Drug Administration, which had previously allowed patients to access pills through telehealth and the mail. The 5th Circuit panel was made up of one judge appointed by George W. Bush and two judges appointed by US President Donald Trump.
Alito issued the order because he oversees that appellate circuit. In his brief order, the justice asked Louisiana to respond to the emergency appeals by the drugmakers.
In its appeal to the Supreme Court, Danco called the 5th Circuit’s order “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,” Danco wrote.
Also today NZT, officials from nearly two dozen states filed an amicus brief to the US Supreme Court, asking for the 5th Circuit’s ruling to be stayed.
Twenty Democratic attorneys-general signed on, as well as the attorney-general in Hawaii, where the office is nonpartisan. In Pennsylvania, which has a Republican attorney-general, Governor Josh Shapiro (Democrat) joined the brief on behalf of the state.
The officials argued that the return of mandated in-person mifepristone pick-up undermined their ability to dictate reproductive health law in their own states and “placed a federal thumb on the scale in favour of states that have made contrary policy choices”.
After the Supreme Court eliminated Roe vs Wade in 2022, legal experts and abortion advocates forged a new path to preserve access to the procedure, even in states with severe restrictions.
In eight Democratic-led states where the procedure remained legal, they worked to pass “shield laws” – measures that allow providers to remotely prescribe and mail the drugs to women regardless of where they live. Shield laws, which explicitly protect providers from out-of-state prosecution, have kept abortion pills flowing into all 50 states.
As the pill-mailing network flourished, legal challenges mounted. Anti-abortion advocates were troubled by a post-Roe landscape in which women living under abortion bans could still legally end their pregnancies.
They began waging novel battles in court against online pill-mailing services and individual abortion providers.
Half a dozen Republican-led states have sued the FDA over the requirements to dispense mifepristone. Two of those states, Texas and Florida, have challenged the FDA’s original approval of mifepristone in 2000.
Anti-abortion strategists have helped draft new laws in conservative states such as Texas to further curb access to abortion pills and punish those who help distribute them.
The anti-abortion movement has also repeatedly pressured the Trump Administration and the FDA to rein in access to abortion drugs. Still, those myriad efforts had done little to keep women from accessing abortion pills – until last week’s ruling.
“The order is deeply unsettling to drug sponsors, healthcare providers, patients, and the public – all of whom rely on FDA’s exercise of scientific judgment and orderly administration of the Nation’s complex system of drug regulation,” GenBioPro wrote in its emergency filing to the Supreme Court.
The FDA approved mifepristone in 2000, and major medical organisations say there is “robust evidence” collected over more than two decades showing the pill is safe and effective.
Mifepristone is used in conjunction with another drug, misoprostol.
Abortion providers have braced for rulings that could curtail access to the drug before. They have weighed what to do if that were the case and had discussed potentially switching to a misoprostol-only regimen. Misoprostol can be used on its own but is considered somewhat less effective and can cause longer discomfort and cramping.
Data shows that more American women are choosing to terminate pregnancies via medication abortion through telehealth. In 2023, medication abortion became the most common way to end a pregnancy.
In 2024, the Supreme Court upheld access to mifepristone in a separate case challenging the drug, ruling unanimously that the anti-abortion doctors who brought the case did not have grounds to sue.
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