Supreme Court allows abortion pill Mifepristone to be sent by post pending appeal

The Supreme Court said Thursday it will allow mail ordering of the abortion drug mifepristone pending the outcome of an appeal challenging the way the drug is distributed.

The Supreme Court did not say how many judges on the nine-member court voted to continue the stay on an appeals court order blocking mail orders of mifepristone. Nor did the majority issue an explanation of its decision.

The Supreme Court’s two conservative justices, Clarence Thomas and Samuel Alito, issued a written dissent on the order, which indefinitely extended the temporary stay issued by the Supreme Court on May 4.

The state of Louisiana, which bans abortion in almost all cases, sued the Food and Drug Administration over its 2023 decision to lift the rule requiring mifepristone to be administered individually. That rule was lifted a year after the Supreme Court overturned its nearly 50-year-old precedent in Roe v. Wade, which held that abortion was a federal constitutional right.

After a federal district court judge rejected Louisiana’s request to block mail ordering of mifepristone while the lawsuit was pending, the state appealed to the 5th Circuit US Court of Appeals, which on May 1 imposed a nationwide ban on mail ordering of the drug pending the case.

Two drug manufacturers, Danco Laboratories and GenBioPro, then asked the Supreme Court to lift the ban on mifepristone being distributed through the mail.

In his dissent, Thomas said the companies “complain that the Fifth Circuit’s order will reduce profits from selling mifepristone.”

“I would refuse their applications because they have not met their burden to seek interim relief,” Thomas said.

“I write separately to note that, as Louisiana argues below, it is a criminal offense to ship mifepristone for use in abortion,” Thomas wrote. “The Comstock Act prohibits using the ‘mail’ to send any ‘drug…’ for abortion.” “

“The applicants are not entitled to seek a stay of an adverse court order based on the profits they lost from their criminal enterprise,” he wrote. “In any legally relevant sense, they cannot be irreparably harmed by a court order that makes it more difficult for them to commit crimes.”

In his dissent, Alito described the majority’s “unreasonable order” in granting a stay in the case as “remarkable.”

Alito wrote, “At stake is the implementation of a plan to undermine our decision in Dobbs v. Jackson Women’s Health Organization… which restored each state’s right to decide how to regulate abortion within its borders.”