The Supreme Court ruled May 14 to allow providers of mifepristone, an FDA-approved abortion drug, to continue shipping the medication as a Louisiana lawsuit returns to an appeals court.
Mifepristone, which is used in a slight majority of U.S. abortions, is indicated to terminate a pregnancy within the first 10 weeks of gestation. In 2023, the FDA allowed drug manufacturers and distributors to ship the medication — sparking criticism from anti-abortion advocates.
A lawsuit filed in Louisiana in September seeks to retract the mail-order allowance. A Louisiana judge ruled in favor of drugmakers, while an appeals court said the FDA’s decision obstructed Louisiana’s near-total abortion ban.
The Supreme Court stayed the 5th Circuit Court of Appeals’ May 1 decision. On May 14, the nation’s highest court sent the case back to the appeals court.
Justices Samuel Alito and Clarence Thomas dissented the unsigned decision. Mr. Alito said allowing mifepristone to be mail-ordered to states with abortion bans is 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.”
Mr. Thomas cited the Comstock Act of 1873, which outlawed the mailing of publications deemed “immoral” and “indecent.” In 2022, the Justice Department — under then-President Joe Biden — said the Comstock Act can ban mail-ordered abortion pills only if the sender knows they are for an illegal abortion, not if the patient lives in a state that legalizes abortion.
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