The Supreme Court has issued a full stay of the Fifth Circuit’s ruling that would have required mifepristone to be dispensed in person — allowing mail-order and telehealth access to the abortion drug to continue nationwide while Louisiana’s lawsuit against the FDA proceeds through the lower courts.
Justice Alito wrote in dissent that allowing mail-order and telehealth access to mifepristone is a “scheme to undermine” the court’s Dobbs decision and the right of states to protect unborn children from abortion. Justice Thomas agreed, writing: “Applicants are not entitled to a stay of an adverse court order based on lost profits from their criminal enterprise. They cannot, in any legally relevant sense, be irreparably harmed by a court order that makes it more difficult for them to commit crimes.”
Louisiana had sued the FDA over its 2023 decision to lift the in-person dispensing requirement for mifepristone — a rule that existed for years before the Biden administration eliminated it. The state argued the policy directly enabled illegal abortions within its borders, circumventing its near-total abortion ban.
The case will now return to the Fifth Circuit for full briefing and argument before likely making its way back to the Supreme Court. Louisiana Attorney General Liz Murrill called the decision “shocking” and vowed to continue fighting. The dissents from Thomas and Alito signal that at least two justices believe the legal case against mail-order abortion is strong. The underlying question — whether a federal agency can enable abortion by mail in states that have banned it — remains very much unresolved.
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