Supreme Court Takes Unusual Step As Legal Showdown Intensifies Over Mail-In Abortion Drug

The U.S. Supreme Court on Monday temporarily restored access to the abortion pill mifepristone, blocking a federal appeals court ruling and teeing up a showdown at the high court.

On Friday, a three-judge panel of the ⁠Fifth U.S. Circuit Court of Appeals blocked a nationwide Biden-era policy allowing the abortion pill mifepristone to be prescribed online and delivered by mail. The court held that the regulation is likely unlawful and inflicts ongoing harm while litigation proceeds.

Over the weekend, manufacturers of the abortion drug filed emergency appeals asking the Supreme Court to intervene.

Acting alone, Justice Samuel Alito on Monday entered an administrative stay of the Fifth Circuit ruling, which is a short-term, procedural order that freezes legal proceedings to maintain the status quo. 

The emergency order, set to expire next Monday, directs Louisiana to file briefs for consideration by the full court.

After the Supreme Court overturned Roe v. Wade, the Biden administration expanded access to chemical abortion nationwide. Under the 2023 rules, mifepristone could be prescribed via telehealth and shipped without an in-person doctor visit.

The majority of abortions in the U.S. are obtained through medications, usually a combination of mifepristone and a second drug, misoprostol, according to the Associated Press. The policy aims to circumvent some of the abortion bans that conservative states have implemented.

Louisiana challenged the Biden-era policy under the Administrative Procedure Act, arguing the FDA relied on flawed or nonexistent data while eliminating safety protocols. The Daily Wire previously reported that the agency acknowledged it had not adequately studied the safety of remote dispensing and is still conducting a review, with no clear timeline for completion.

The Fifth Circuit rejected the argument that courts should wait on the FDA’s ongoing review. Allowing the policy to continue, the panel argued, would effectively permit the agency to maintain a potentially unlawful regulation indefinitely.

“Every abortion facilitated by FDA’s action cancels Louisiana’s ban,” the court wrote, emphasizing that such sovereign harms cannot be undone.

The ruling outraged Democrats. Senate Minority Leader Chuck Schumer (D-NY) called the decision “an appalling overreach.”

The Trump administration has defended the F.D.A. in court as the agency conducts a new review of mifepristone. Some anti-abortion advocates have been frustrated with the speed of the review, putting the White House in an uncomfortable political position going into the November midterms.

Susan B. Anthony, a prominent Pro-Life group, blasted the Trump administration and called for the immediate termination of FDA Commissioner Martin A. Makary.

“Indifference is completely unacceptable to millions of pro-life voters expecting the administration to act to save lives. Abortions are up, not down, after Dobbs, with at least 1.1 million deaths a year,” the group said in a statement. “More than 90,000 abortions occur each year just in states that protect babies in the law throughout all nine months of pregnancy — a direct result of Biden’s Covid-era mail-order abortion drug rule, which the Trump administration inexplicably allows to continue.”

“This is a five-alarm crisis for the pro-life movement and for the GOP,” the group added. “The GOP cannot win without its base and simply will not get the enthusiasm that drives turnout without leadership from the top.”

The White House was not immediately available for comment.