Supreme Court restores mail access to abortion pills 

WASHINGTON (CN) — The Supreme Court temporarily restored remote access to abortion pills nationwide on Monday, blocking an appeals court order that would have barred patients from receiving the medication by mail.

The Fifth Circuit restricted the pill’s prescription via telemedicine at the behest of Louisiana, which claimed the availability of medication by mail violated the state’s near-total ban on the procedure.

Danco Laboratories and GenBioPro, which make abortion pills, filed emergency appeals at the high court over the weekend, calling for the justices’ intervention to prevent chaos for patients and providers across the U.S.

“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. “Today, patients who planned to pick up a mifepristone prescription at their local pharmacy may no longer be able to do so, regardless of which state they live in.”

Medication abortion accounts for over 60% of abortions in the U.S. each year. A quarter of all abortions nationwide are provided via telehealth, which saw a two-fold increase after Roe v. Wade was overturned.

Mifepristone was approved over two decades ago for its use in ending early-stage pregnancies. Taken together with misoprostol — an ulcer medication — the regime can be used up to 10 weeks’ gestation. The pill’s safety record rivals drugs like penicillin and Viagra; it is also 14 times safer than childbirth.

Online access

The pill’s in-person dispensing requirement was first suspended due to the Covid-19 pandemic. After additional reviews, the Food and Drug Administration modified mifepristone’s safety warnings in January 2023 to permit pharmacies to dispense the drug by mail going forward.

Despite assertions from medical organizations and the drugmakers, Louisiana argues the FDA’s decision was based on inadequate or flawed data, claiming the 2023 regulations violate the Administrative Procedure Act.

According to the appeals court, the regulations opened the door for mifepristone to be remotely prescribed to Louisianans, interfering with the state’s sovereign laws. The Fifth Circuit also found financial injuries to the state, citing emergency room care from two women after they experienced complications from the pills.

Abortion pill providers say both arguments were based on attenuated downstream harms, too disconnected from the FDA’s 2023 regulations. And they admonished the Fifth Circuit for issuing relief sweeping far past Louisiana’s borders.

“It bears emphasis how unprecedented the Fifth Circuit’s order is. 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 Laboratories wrote.

Back again

Despite Alito’s 2022 statement in Dobbs v. Jackson’s Women’s Health Organization that the court was “return[ing] the issue of abortion to the people’s elected representatives,” Louisiana’s case marks the third time the high court has weighed in on the issue since then.

In 2023, the justices issued an emergency ruling barring a lower court from removing the popular drug from shelves nationwide. The following year, they unanimously rejected a challenge from conservative doctors seeking to add new limits on mifepristone.

Louisiana’s case closely mirrors the doctors’ challenge, which was dismissed based on lack of standing. The drugmakers urge the justices to follow a similar pattern here.

“If doctors lacked standing based on ‘downstream economic injuries’ from treating patients with mifepristone complications, Louisiana cannot establish standing because the doctor later sends an invoice to the state,” GenBioPro wrote.

Abortion advocates offered cautious optimism that the high court blocked the Fifth Circuit’s ruling for now. However, they said the case demonstrates the precariousness of abortion rights.

“While this is a positive short-term development, no one can rest easy when our ability to get this safe, effective medication for abortion and miscarriage care still hangs in the balance,” Julia Kaye, senior staff attorney for the Reproductive Freedom Project of the ACLU, said in a statement. “The Supreme Court needs to put an end to this baseless attack on our reproductive freedom, once and for all.”

Alito’s administrative stay expires at 5 p.m. on May 11, giving the court a week to weigh in on the case. Louisiana was asked to respond to the drugmakers applications by Thursday.

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